Hill and Comcare (Compensation)
[2018] AATA 670
•26 March 2018
Hill and Comcare (Compensation) [2018] AATA 670 (26 March 2018)
Division:GENERAL DIVISION
File Number: 2017/0695
Re:Brian Hill
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:26 March 2018
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd].......................................................................
Miss E A Shanahan, Member
WORKER’S COMPENSATION – left knee meniscal tear arising from playing netball – in the course of employment - arising out of employment – s 6(1)(c) temporary absence from place of work – at the direction or request of the Commonwealth or a licensee – injury occurring at interval between discrete periods of work – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Kavanagh v Commonwealth (1960) 103 CLR 547
Commonwealth v Oliver (1962) 107 CLR 353
Commonwealth v Lyon (1979) 24 ALR 300
Hatzimanolis v ANI Corp Limited (1992) 173 CLR 473
Wayne Gregory v Comcare Australia (1997) 72 FCR 197
Re Richardson and Comcare (1997) 46 ALD 440
Roncevich v Repatriation Commission (2005) 222 CLR 115
Re Prieto and Comcare [2010] AATA 546
Re Saunders and Comcare (2011) 123 ALD 568
Telstra Corporation Limited v Bowden (2012) 206 FCR 207
Pioneer Studios Pty Ltd v Hills (2015) 13 DDCR 373
Tran v Vo [2017] NSWCA 134
The Star Pty Ltd v Mitchison [2017] NSWCA 149Comcare v PVYW (2013) 250 CLR 246
REASONS FOR DECISION
Miss E A Shanahan, Member
26 March 2018
Mr Brian Hill lodged an application for review of the decision of Comcare on 8 February 2017. The reviewable decision dated 12 December 2016 had affirmed the earlier determination of 10 October 2016 denying liability for a left lateral meniscus tear of the knee sustained on 24 October 2015 while playing netball at the “Department of Human Services Games” (DHS Games). The authorised review officer (ARO) Anna Teofilovic (T26) adopted the reasons of the determination. In the latter, Mr Alex Stocks had adopted the reasoning of Ms Rose Masiello (T21) of Allianz Insurance. Ms Masiello had found that the activity during which Mr Hill sustained his injury was not associated with his employment within the meanings of s 6(1)(c)(i) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and therefore compensation was not payable.
At the hearing before this Tribunal, Mr Hill was represented by Mr Karl Pattenden of counsel, instructed by Abraham Ghaleb, solicitor of Slater and Gordon. The respondent was represented by Mr Ray Ternes of counsel, instructed by Katherine Stewart, solicitor with Comcare. The respondent had lodged with the Tribunal documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975. The parties tendered further documentation, a list of which is appended to this decision.
Mr Hill gave evidence in person; as did Ms Jolene Miller an employee of Department of Human Services (DHS) whose role it was to co-ordinate the 2015 DHS Games. The parties provided a statement of agreed facts, and while the Tribunal is not bound to accept such a statement, it covered all of the major issues and the salient events relating to the claim.
BACKGROUND TO THE APPLICATION
Mr Hill joined the DHS as a Customer Service Officer in 2006. Initially he worked in Centrelink, the service delivery agency for DHS. Mr Hill normally worked 37½ hours per week. On 11 September 2015 he applied to reduce his hours in order to undertake part‑time tertiary studies. His request was approved. Between 14 September 2015 and 1 November 2015 he worked 27.75 hours per week, took Thursdays off, and commenced work on Mondays at 13.00 hours, working until 16.45 hours.
From April 2015 Mr Hill was aware that what was referred to in the Department as the DHS Games were to be held in Geelong in October 2015. These games had originally been a biannual event and known as the Centrelink Games. Since 2009 they have been conducted on an annual basis. Mr Hill attended the 2014 Games and had a great time and felt that it had been of benefit workwise. In early August 2015 Mr Hill registered to attend the games and to participate in the five kilometre run/walk and to play netball. He paid the registration fee by Direct Debit to a special account entitled DHS Games Account. He subsequently applied for and was granted annual leave for Friday 23 October 2015.
Mr Hill believed that 12 to 15 of 30 Bendigo employees had enrolled to attend the DHS Games (Exhibit A1). The official number attending was six. (Exhibit R2, Annexure 1).
The Department encouraged its employees to participate in the games. It provided assistance in organising the events and ensuring attendance by having an employee devoted to the games co-ordination for 6 to 12 months each year. In 2015 the co‑ordinator was Jolene Miller. Ms Miller worked full time co-ordinating the games from December 2014 until December 2015, with the assistance of Mr Phil Joyce, another employee, who devoted two days per week to the organisation of the games.
The games were funded by the participants’ fees and were officially entitled, Geelong Games 2015 Victoria. Sponsorship was provided by entities such as BUPA and Security Credit Union but the level of sponsorship was minor. The sponsors provided drink bottles, a muesli bar, sunscreen and a tee-shirt printed with a logo. A special bank account had been established for the DHS Games. Attendance at the games was open to non-DHS persons. The latter had to complete and sign a DHS Games disclaimer and privacy notice. DHS employees attending were advised by intranet and were to accept the requirements outlined in these documents by ticking appropriate boxes.
Prior to the games, funds were raised by three work functions, wherein the employees came to work in casual clothes and donated a gold coin. The aim of the DHS Games, apart from the benefits to the employees, was to raise money for several charities.
Mr Hill drove his car from Bendigo to Geelong, picking up two co-workers on the way. They had arranged Airbnb accommodation for three nights. They registered their attendance at the games on 22 October 2015 and received their welcome pack. However, they did not attend the functions planned that day or the sporting functions on the next day. On 23 October 2015 Mr Hill arrived late to the official opening and did not hear the greeting and opening speech by the acting secretary of the Department, Mr Grant Tidswell.
On 24 October 2015 Mr Hill competed in the five kilometre run/walk, which he described as uneventful. He then played netball. During this game he landed awkwardly on his left knee and immediately felt a sharp pain in the joint. That night his pain increased in severity. The following day, 25 October 2015, he returned to Bendigo, presumably driving his car, and immediately attended the Bendigo Hospital. X-rays of the left knee were performed and were described as being normal. The physiotherapist, who examined him and recorded his examination findings, suspected that he had torn his left lateral meniscus (Exhibit A2). Mr Hill was not seen by a doctor. Mr Hill was given crutches and advised to see his general practitioner the following day.
Mr Hill attended Dr Fahad Jamil on 26 October 2015 and acquainted him with the injury. On examination, Dr Jamil elicited mild tenderness at the lateral border of Mr Hill’s left knee joint but no other abnormality. Mr Hill was advised to continue with physiotherapy and to lose weight. He had previously seen Dr Jamil on 21 October 2015 and complained of tiredness, poor sleep and weight gain of 10 kilograms in a few months. On that day he weighed 110 kilograms. There are no earlier records of his weight.
The pain in Mr Hill’s knee persisted but fluctuated in intensity. He found his walking distance was limited and he was unable to jog as his left knee felt weak and readily gave way. Mr Hill had returned to work on 27 October 2015 and was subsequently placed on alternate duties which essentially restricted him to desk work.
Despite losing weight, to 105 kilograms by 30 November 2015, Mr Hill’s symptoms persisted. On 1 August 2016 Dr Jamil ordered an MRI (magnetic resonance imaging) of the left knee. This revealed a small tear in the lateral meniscus. Mr Hill was referred to the orthopaedic surgeon, Mr Dugal James, who confirmed the diagnosis and recommended arthroscopy and debridement of the meniscus. On 8 August 2016, having been advised of the MRI findings, Mr Hill contacted the Department informing them of the diagnosis and the injury he had suffered on 24 October 2015. He was appropriately advised, completed an incident report and a claim for compensation.
Mr Hill’s claim, following an investigation and consideration by Allianz Australia Insurance Limited, was denied. As he did not have private hospital insurance he was placed on the waiting list for arthroscopy in the public hospital service at Bendigo Health.
On 26 October 2016 Dr Travis Perera, orthopaedic surgeon, performed an arthroscopy and resection of the small torn piece of lateral meniscus on Mr Hill at Castlemaine Health. He described the findings in the left knee, apart from the torn meniscus, as being normal.
Following the arthroscopy and meniscal repair/resection, Mr Hill continued to experience pain and discomfort. He returned to work in the customer service officer role on 20 April 2017.
Mr Hill continues to suffer discomfort, is unable to run any long distances, can perform his household tasks but experiences knee pain if he stands for more than five minutes. He said he has gained 20 kilograms but in actual fact his gain is 14 kilograms as he was 110 kilograms before the event and now weighs 124 kilograms. His weight fluctuated in the interim.
EVIDENCE BEFORE THE TRIBUNAL
Mr Brian Hill
Mr Hill’s evidence has been summarised under BACKGROUND TO THE APPLICATION. Unfortunately, he was not able to recall the events of 2015 in great detail. For example, he could not remember who had booked the Airbnb accommodation. He could not recall whether he experienced knee pain prior to the incident of 24 October 2015. He did not recall the content of supplementary T-document 2 (ST2), which contained the Games welcome book, a statement of the purpose of the Games, the outline of events, and a statement that the accommodation, transportation, registration, the social ticket and sports ticket were at the expense of the attendee not the Department. The book also listed the charities that were to be funded as a result of the 2015 Games.
The welcome book required that attendees uphold the Public Service Values and the Code of Conduct at all times. It set out the expectation that attendees would follow the Department’s Work, Health and Safety Policy. These were detailed in relation to warm-up procedures, stretching, hydration and sun protection. Attendees were requested to report any injuries or incidents that occur during the games to Essentials a DHS section. Many of the events were to be undertaken at the Eastern Beach Reserve, Eastern Park Bowling Club, Kardinia Park and Bowls Club. Mr Hill’s recall of the details of this book was not good but he believed it was in the welcome pack. He did recall that several senior members of the Department were present at the Games.
Ms Jolene Miller
Ms Miller’s evidence has been summarised in part under BACKGROUND TO THE APPLICATION. She confirmed her role over 12 months as the co-ordinator of the 2015 Games, the raising of funds by casual clothes day, and the payment of the profits of the event to various charities. She detailed the items provided by the sponsors. She also confirmed that a rider that appeared in the emails in relation to the 2016 Games was to the effect that this was not a DHS event. This had not been mentioned in the details of the 2015 Games.
Ms Miller has worked for DHS for eight years and while aware of the existence of the Games since 2009 she had not been involved until 2015. Ms Miller said she applied for the position as co-ordinator of the Games. Prior to her appointment she worked as an Executive Assistance at an APS 5 Level. Her Games duties also involved entering into the hiring of things like buses to transport individuals to and from sites and the arrangements regarding sporting venues and sites for social events. She paid for these costs from the DHS Games cheque bank account. The collection of funds from various employees was done through the DHS employee self-service (ESS) online portal.
Annexed to Ms Miller’s statement (Exhibit R3) were the Terms of Reference of the Games Steering Committee, numerous other documents and a Risk Management Plan which appears to be a template for the DHS. The site of the Games netball competition at Kardinia Park, Geelong had been assessed by Mr Phil Joyce and Ms Valerie McRorie in accordance with the template. The risks related to the site were low, with risk related to transport by bus, the occurrence of physical fatigue or a physical collision between participants and the exposure to bodily fluids were estimated to be medium. An ambulance was to be present at a cost of $405.00 for the day in accordance with Occupational Health and Safety, State and Federal legislative requirements. It was Ms Miller’s evidence that such a risk management assessment was made for things like Christmas parties but she was uncertain if it applied only to events outside the DHS offices.
The Steering Committee overseeing the co-ordination of the Games consisted of representatives of management and was divided in Victoria to north, west and east zones. Smaller groups were involved in regular updates on the progress of co-ordination. Ms Miller confirmed that senior management persons did attend both sporting and social functions.
Ms Miller gave evidence that a fee had to be paid for the hire of the Kardinia Park ground, but she was uncertain of the amount, and that she had hired buses to transport attendees from one site to another. She said she arranged the hire of the buses by telephoning around and accepting the cheapest quote. Whether there was a formal contract or not is unknown. In addition, arrangements free of charge had been made with the Geelong City Council in relation to the Games having exclusive access to the netball sites.
Ms Miller confirmed that she had communicated with Mr Hill by email and on Skype in relation to his reporting of his injury in August 2016, 11 months after the event; and that an incident report had been completed.
In cross-examination Mr Ternes confirmed the use of the DHS intranet service Essentials to collect the deposits from the attendees, that approximately 33 non-DHS employees had participated in the Games, and that the risk documents completed by those who were to participate in the Games was the Departmental intranet-provided, risk document, as it was easier to use the existing template than devise a new one.
DOCUMENTARY EVIDENCE
Dr Jamil’s clinical records relating to Mr Hill have been addressed where relevant under BACKGROUND TO THE APPLICATION; as have the Supplementary T-documents. The latter consisted of data provided by DHS, the information relating to the intranet site for the Games, the Welcome Book, the overview of the Games, the First Aid Record forms, the Registration template including the DHS Games disclaimer, Conditions of Entry form and a Privacy Notice.
Report by Mr Gary Stagg
Mr Gary Stagg provided a witness statement dated 1 September 2017 (Exhibit R2). Mr Stagg was not called to give oral evidence. In his statement he identifies himself as being Mr Hill’s team leader between 6 October 2014 and 20 November 2015. He outlined the work conditions and duties of a CSO (customer service officer) as being to ascertain the customer’s problem, resolve their enquiries, identify the law, prioritise them according to need, refer customers where necessary to other services, and to resolve routine and non‑routine customer enquiries. There was also a responsibility to provide on the job support and training to other CSO’s, identify opportunities for business and process improvement and engage in quality assurance as a quality checker.
Mr Stagg provided the terms of Mr Hill’s part-time work agreement between 14 September and 1 November 2015, the granting of leave for attendance at the Games on 23 October 2015, and the subsequent notification of the knee injury on 26 October 2015. As a result of the injury, Mr Hill was transferred from the role of Customer Liaison Officer to the Virtual Administration Processing Team on 23 November 2015.
According to Mr Stagg, Bendigo DHS employees had been strongly encouraged to attend the 2015 Games as they were being held in their area (the Tribunal presumes this refers to Region North).
Bendigo Health Records
The record of Mr Hill’s attendance at the Accident and Emergency Department of the Bendigo Hospital on 25 October 2015 was provided to the Tribunal, and the content has been referred to under BACKGROUND TO THE APPLICATION (Exhibit A2).
RELEVANT LEGISLATION
Parties have identified the issue as being a narrow one, and attracting essentially only two sections of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), these being s 5A(1)(b) and s 6.
5A Definition of injury
(1) In this Act:
injury means:
...
(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 ...
Section 6 of the SRC Act addresses injury arising out of or in the course of employment and states:
6 Injury arising out of or in the course of employment
(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:
...
(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 ...
Section 6 provides for additional circumstances where coverage of the SRC Act is deemed but does not displace s 5A(1)(b).
The Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 which came into effect on 13 April 2007 (Amendment No 54 of 2007) describes the rationale for the Amendment as:
These items amend section 6 of the SRC Act which deals with the circumstances in which an injury to an employee may be treated as having arisen out of, or in course of, his or her employment. Paragraph 6(1)(b) currently provides that injuries incurred by an employee during temporary absences from the workplace during an ordinary recess or while travelling may be treated as having arisen out of, or in the course of, the employee’s employment.
Item 12 repeals paragraph 6(1)(b) and substitutes new provisions which aim to clarify 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.
Recesses and absences from the workplace
In its March 2004 report on National Workers' Compensation and Occupational Health and Safety Frameworks, the Productivity Commission recommended that coverage for recess breaks and work-related events should be restricted, on the basis of lack of employer control, to those at workplaces and at employer sanctioned events. The amendments reflect this approach.
The amendments will provide that injuries incurred while an employee was temporarily absent from the workplace during an ordinary recess in employment will generally not be injuries arising out of, or in the course of, employment. For example, an employee who leaves his or her workplace at lunch time to buy a sandwich will not be covered by the SRC Act while he or she is absent from the workplace.
However, the amendments do not affect:
•injuries incurred by an employee during an ordinary recess at the workplace – new paragraph 6(1)(b); and
•injuries incurred by an employee while the employee is temporarily absent from his or her workplace undertaking an activity associated with the employment or at the direction or request of the employer – new paragraph 6(1)(c).
The Explanatory Memorandum gave the example of an employee who remained at the workplace at lunch time and ate their sandwich in the amenities room or purchased it in the staff canteen would be covered by the SRC Act during that break.
The Government’s intention to reinstate liability for off-site recess injuries as advised on 7 December 2011 was not pursued as the Bill lapsed in 2010.
SUBMISSIONS
Mr Pattenden first addressed the case law in relation to s 5A of the SRC Act and its precursors which had considered the meaning of arising in the course of employment. He took the Tribunal to the decision of Chief Justice Dixon in Kavanagh v Commonwealth (1960) 103 CLR 547, 554. His Honour said:
In one sense of the word “in” therefore the injury by accident occurred “in the course of the employment”.
and later referred to this as a temporal, not a causal connection.
Mr Pattenden also relied on Dixon J’s (as he then was) decision in Hendersen v Commissioner of Railways 58 CLR 281 where he addressed the meaning of the phrase course of employment and concluded that this had been established over time as requiring that the acts of the workman must be part of his service to the employer. Judge Dixon considered this to include the undertaking of tasks incidental to the performance of the work.
Mr Pattenden submitted that the evidence before the Tribunal overwhelmingly supported the argument that the primary injury of Mr Hill’s left knee meniscal tear arose out of, or in the course of employment, satisfying s 5A(1)(b) of the SRC Act and thus attracted liability for compensation. In order to arrive at that conclusion the applicant relied on the exercise of s 6(1)(c)(i) and (ii). It was then conceded that s 6(1)(c)(i) was not attracted as the attendance at the Games was clearly not associated with Mr Hill’s employment, but subsection (ii) was, as Mr Hill had attended at the request of but not the direction of the Department.
Mr Pattenden further submitted that Mr Hill was strongly encouraged by his employer to attend the 2015 DHS Games as evidenced by Mr Stagg’s statement; and that 6 out of 30 employees from his team had done so. It was further contended that since 2009, and despite various changes in the name of the Department providing these services, the Department had organised, run, promoted, contributed to and managed the Games. The promotional material provided to Mr Hill via the DHS intranet was such that he believed he was encouraged to attend and to do so for networking purposes as well as the benefits of engaging in sporting activities.
Mr Pattenden contended that the claim was supported by the fact that Ms Miller, the co‑ordinator of the Games, devoted all of her working time to the Games organisation and her salary was paid by the DHS as was that of Mr Joyce who assisted her for two days per week. In addition, the Steering Committee of the Games was constituted by senior managers or executives within the Department in Victoria. The DHS intranet provided the means for employees to register for the Games and registration fees were paid via ESS. Despite Ms Miller’s evidence, it was contended that the contracts with the bus service in Geelong and with the Geelong City Council were entered into by DHS and not Ms Miller as an individual.
Mr Pattenden submitted that the Department maintained control of the Games in that participants filled in Risk Management forms online and were required to complete medical forms online if they were injured, and that these medical forms were sent to the division of DHS known as Essentials.
Mr Pattenden addressed the details of the Welcome Book, submitting that the use of the pronoun our was a reference to DHS; the rules of the netball competition had been set by the Department; and the Australian Public Service Values and Code of Conduct applied throughout the Games.
The reference to the Department in the Welcome Book entries indicated it was a corporate event and the official logo of the Department appeared on some of the content of the Welcome Book.
Mr Pattenden detailed the case law relating to sporting events, which is voluminous. He distinguished the decision in Re Prieto and Comcare [2010] AATA 546 in that the activities in that case had been organised by another agency and not the department. He relied on the decision in Commonwealth v Lyon (1979) 24 ALR 300, the facts of which he considered to be very similar to Mr Hill’s claim, except that Mr Hill’s claim was stronger.
Similarly, Mr Pattenden contended that in the AAT decision in Re Saunders and Comcare (2011) 123 ALD 568 which held that an injury sustained while playing soccer in a lunchtime match organised by the Customs Social and Sports Club, was in the course of employment as an associated activity encouraged by the employer who had used its internal communication system to promote and advertise the events. Mr Pattenden again argued that the facts in Hill were very similar but stronger in Hill than in Saunders. He submitted that the Tribunal must look to the element of control exercised by the Department which led to the conclusion that the tests imposed by s 5A and s 6(1)(c)(i) and (ii) of the SRC Act were satisfied as the Games were a regular systemic event promoted and encouraged by the Department. Thus, he concluded, the injury sustained on 24 October 2015, had occurred or arose in the course of Mr Hill’s employment with DHS, there being a temporal connection founding liability for the injury.
Mr Ternes for the respondent
Mr Ternes provided written submissions, to which he spoke. He submitted that the facts were not in dispute but the interpretation as applied to the legislation differed. It was conceded that Mr Hill had sustained a tear of his left lateral meniscus on 24 October 2015 while playing netball and this had resulted in some incapacity for work and/or impairment.
Mr Ternes identified the sole issue before the Tribunal as being whether the lateral meniscal tear arose out of or in the course of Mr Hill’s employment with DHS, either in the primary sense of s 5A(1)(b) or the expanded sense of s 6(1) of the SRC Act.
Mr Ternes’ major submission was that Mr Hill was not working while attending the Geelong Games over a period of several days. He relied on the High Court decision in Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34 wherein Windeyer J stated:
When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment.
This interpretation has been affirmed in several High Court decisions. Mr Ternes submitted that Mr Hill’s employment involved work related to Medicare, Centrelink services and the Child Support agency services. None of these areas of his employment or anything incidental to them had been relevant to the Games. Mr Hill’s normal duties did not involve networking which he claimed to be the feature that had attracted his attendance.
Mr Ternes identified the respondent’s major argument as being related to the interpretation of s 6(1)(c) of the SRC Act given the facts before the Tribunal. In particular this involved the concept of being temporarily absent from employment, whether the activities were associated with employment and whether the employer had encouraged or induced Mr Hill to be at a particular place or engage in a particular activity and whether he was injured during an interlude in an overall period of employment. It was submitted that Mr Hill’s injury occurred between two very discrete periods of work.
In relation to the phrase temporarily absent, Mr Ternes argued that this connotes an absence from the workplace shorter than a weekend. He addressed the Tribunal decision in Re Wheele and Comcare [2010] AATA 200 where Senior Member Allen had determined that Mr Wheele, who played in an Australian Federal Police (AFP) soccer match during a period when he was on leave and absent from work for seven days, had been temporarily absent. The application failed as the Tribunal found that his attendance at the game was not associated with his employment. Senior Member Allen had termed the concept of temporarily absent from the place of work as being a vexed question. Some, but not all, of the facts in Re Wheele are similar to those in Mr Hill’s application. In Wheele the logo of the AFP was on all uniforms and some documentation relating to the soccer match, the games had been a feature of an annual event and were encouraged by the employer.
Mr Ternes acknowledged that there were other similarities, in that although DHS did not pay for any of the activities, it had provided assistance through a steering committee, the employment of Ms Miller as a co-ordinator of the Games; and that DHS templates had been used for risk management for convenience only. Mr Ternes contended that the use of the term our in much of the documentation was ambiguous and could refer to DHS or to the employees who had funded the Games. Clearly, the majority of Mr Hill’s team in Bendigo had not attended the Games; only 6 out of 30 were present at the Games and non-DHS employees also participated.
Mr Ternes contended that a temporary absence from the employee’s place of work would ordinarily be shorter than a weekend. He referred to the Macquarie Dictionary definition of temporary as being lasting, existing, serving, or effective for a short time only. The facts before the Tribunal were that Mr Hill had ceased work at 16.45 hours on Wednesday, 22 October 2014, and was not required to attend work again until 13.00 hours on Monday, 26 October 2014. Mr Ternes submitted that this represented two well-defined periods of work, separated by a longer than normal weekend, when he did not work in accordance with his then part-time work agreement, supplemented by a day of annual leave.
Mr Ternes considered the requirement that any temporary absence was associated with the employee’s employment, contending that attendance at the Games was not incidental to Mr Hill’s work.
Mr Ternes addressed the voluminous case law regarding sporting injuries and both the Commonwealth Workers’ Compensation Act and the SRC Act, including Commonwealth v Oliver, Commonwealth of Australia v Lyon, Gregory and Comcare, Wheele and Comcare, Prieto and Comcare and Saunders and Comcare, wherein Commonwealth employees suffered injury playing (predominantly) soccer. The games were played during lunchbreaks and in close proximity to the workplace.
The decisions varied in their interpretation of whether the involvement in these activities was considered to be a period of temporary absence and/or encouraged by the employer. Mr Ternes distinguished these decisions from Mr Hill’s claim on the basis of the facts provided.
Mr Ternes relied on the decision in Telstra Corporation Ltd v Bowden (2012) 206 FCR 207, wherein Murphy J cited and followed an earlier Full Court of the Federal Court of Australia decision adopting the statements at paragraph 68 of the Repatriation Commission v Law [1980] 31 ALR 140 wherein the Court said :
It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause.
and
The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.
At paragraph 92 Murphy J said:
The question as to whether the event giving rise to injury was something that Mr Bowden was required or expected to do to carry out his actual duties was relevant but does not apply to exclude a broader consideration of whether the injury arises out of employment.
Mr Ternes also referred to the decision in The Star Pty Ltd v Mitchison [2017] NSWCA 149, which considered the concept of arising out of employment.
In conclusion, Mr Ternes submitted that the playing of netball at the DHS Games lacked the required connection with the Mr Hill’s employment and therefore his meniscal tear did not arise out of his employment. Mr Hill’s claim was not a “locality” case such as Bowden and any connection to Mr Hill’s work duties was fanciful and tenuous.
In reply, Mr Pattenden referred the Tribunal to paragraph 84 of the decision in Bowden which noted the decisions of the New South Wales Court of Appeal and the Victorian Supreme Court that were in conflict with the Federal Court decisions in that they suggested that for an injury to arise out of employment the event giving rise to the injury must be something the employee was required or expected to do to carry out the actual duties of his employment. It was acknowledged that the Tribunal is not bound by State decisions.
Mr Pattenden submitted that encouragement can be so active as to be a requirement or a request. He considered s 6(1) of the SRC Act to be an extending provision and that Geelong, in relation to Bendigo, was geographically close to the place of work. Also, the arrangements were such that only DHS employees participating had access to the various sporting grounds. This he contended equated to control by DHS and therefore Mr Hill was at work.
THE TRIBUNAL’S DELIBERATIONS AND DECISION
For Mr Hill’s application to succeed a temporal relationship with his employment must exist in order to satisfy of one of the provisions of s 6(1)(c)(i) or (ii) of the SRC Act. As a result he would then satisfy s 5A(1)(b) of the SRC Act that his injury has arisen in the course of his employment given his injury occurred during an absence from work during two discrete periods separated by several days. The issues to be addressed are:
·Was Mr Hill temporarily absent from work when injured?
·Was his attendance at the 2015 Games associated with his employment?
·Did he attend at the request of the Employer, DHS?
·Did DHS direct Mr Hill to attend?
The medical evidence is not in dispute. It is accepted by the parties and the Tribunal that Mr Hill suffered a tear of his left knee lateral meniscus and this injury occurred on 24 October 2015 when playing netball at what is referred to as the DHS Games 2015 but officially termed The Geelong Games 2015.
The diagnosis was suggested by Scott Robins, physiotherapist, who examined Mr Hill at the Bendigo Hospital Emergency Department on 25 October 2015. A plain X-ray of the left knee was reported as normal and further investigations that may have proven the diagnosis were delayed for 10 months.
Mr Hill remained symptomatic; and it was not until August 2016 that an MRI was performed and the earlier provisional diagnosis of a lateral meniscus tear was confirmed.
Mr Hill did not attend work on 26 October 2015. Thereafter, his duties were restricted because of pain on prolonged standing. It was anticipated that with physiotherapy his left knee pain would resolve. Such was not the case.
Eventually Mr Hill was seen by an orthopaedic surgeon and an occupational health physician. Both specialists reported that Mr Hill had localised tenderness over the anterior horn of the lateral meniscus but there was no evidence of muscle wasting, which would usually accompany moderate to severe restriction of normal movement of the left lower limb. Mr Hill’s evidence was that he could not jog or stand for long periods of time. The only concern the Tribunal has about the medical evidence was that Mr Hill could not recall whether he had experienced left knee pain prior to the events of 24 October 2015.
Appropriate surgical treatment was undertaken on 26 October 2016, a year after the injury was sustained.
Regrettably, Mr Hill continues to experience left knee pain and incapacity when running and standing for prolonged periods of time. His surgical treatment was appropriate and assessed by the treating surgeon as effective. To the Tribunal’s knowledge, there have not been any repeat investigations to assess the exact status of the left knee joint. The question remains as to whether Mr Hill will require further surgery.
Consideration of s 6(c) of the SRC Act
The parties and the Tribunal are in agreement that there was no direction given by DHS to Mr Hill to attend the 2015 Games. However, as s 6(1)(c)(ii) of the SRC Act also includes the alternative of a request of the Commonwealth or the licensee to attend an event, it requires further consideration.
There is no evidence before the Tribunal of the existence of a formal request that Mr Hill attend the 2015 Games. However, the legal interpretation of the term request has been expanded in Commonwealth v Lyon (1979) 24 ALR 300. Deane J considered the concept of Lyon being reasonably required, expected or authorised to do something in order to carry out his duties. This was based on the formulation of Dixon J in Humphrey Earl Limited v Speechley (1951) 84 CLR 126 and in Commonwealth v Oliver (1962) 107 CLR 353 where the High Court majority considered that the participation in cricket matches between groups of employees ... was countenanced, if not encouraged, by the [employer]. In Oliver, Menzies J had concluded that:
It seems to me that we must determine the question before us upon the evidence looked at, not against the background of a particular decision given thirty years ago upon its own facts, but against the background of what seems to me to be a widely-accepted and sensible present-day practice of employers encouraging workers to spend intervals between working hours, which must often be spent upon the employers' premises, in recreational activities.
In these authorities consideration was given to the facts and, in particular, weight was given to the activities leading to the injury having occurred between two interval periods while on the employer’s premises.
In Re Prieto and Comcare [2010] AATA 546 Professor Creyke addressed the authorities at length and adopted the majority decision in Hatzimanolis v ANI Corp Limited (1992) 173 CLR 473 in terms of the requirement that 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. And she added:
... 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.
Professor Creyke considered the question of whether the activity was authorised, encouraged, permitted or induced by the employer. She concluded that Ms Prieto, was not authorised, encouraged, permitted or induced by the employer to participate in the soccer match. However, the main point on which the claim failed was that the team was supported not by the government department but by the social club and there was no suggestion that the department sanctioned her participation.
In Re Saunders and Comcare [2011] AATA 238, Mr Saunders was injured in a social club soccer match. While in this case the match was organised and run by the social club, a senior officer in the Customs Department had provided a written advice in the form of an email, stating that the Director of Customs Information and Support Centre supported the benefits and encouraged active participation of all staff who were interested in being involved. This email advice was considered to equate to an endorsement of participation amounting to encouragement. This particular event occurred in a lunchtime break between two periods of employment and was accepted as a temporary absence from the place of work.
In Mr Hill’s claim and his application to this Tribunal, the only person who has used the word encouraged is Mr Stagg, his team leader; who in his statement recorded that employees were strongly encouraged to attend the 2015 DHS Games, given they were held in their region.
The evidence before the Tribunal is such that the Department’s role in this respect is one of facilitation, a term used in Wheele, rather than encouragement, inducement, support or authorisation. The Macquarie Dictionary defines the term facilitate as to make easier or less difficult; help forward, an action, a process etc.
In 2014 DHS had 34,757 employees scattered throughout Australia. Communication across departments of this size is by the intranet. This is the means of communicating work-related matters, and by which employee’s applications for leave, and wage claims are processed and by which deductions, such as union dues and health insurance, are made from salaries directly, and forwarded to the body to which the money is owed. This system is also the means of communication for social clubs, extra-curricular events and even bulk-purchased price-reduced goods. This is a far more efficient and effective system for such efforts as the 2015 Games organisation, where bookings and fee collection were done by way of the intranet. All government departments appear to provide such access to their internal electronic communication services. The use of the service does not equate to encouraging, inducing, supporting or authorising any activity.
Was Mr Hill’s attendance associated with his employment?
Mr Hill’s argument was that he attended the Games for the purpose of networking. As contended by Mr Ternes, Mr Hill’s attendance was entirely voluntary, the Games occurred over a weekend, at a time when he did not normally work and did not take place at his place of work in Bendigo. Mr Hill had organised and paid for his transport to and from the Games, and his accommodation. The Games themselves had been funded by the participants’ fees and, to a lesser degree, by sponsorship from companies such as BUPA. Those attending on days they normally worked had to apply for annual leave.
Mr Hill did not work on Thursdays at that time. He took annual leave on the Friday. He drove to Geelong with two co-workers on the Thursday, picked up his welcome pack and did not attend the social event on Thursday evening. Similarly, on the Friday he did not participate in any of the social or sporting events such as darts or the bowls and arrived late at the official opening on the Friday night. He was so late he missed the opening address of the acting Secretary of the Department. We do not know how long he stayed at this event. On the Saturday morning, 24 October 2015, he participated in the beach fun run/walk and in the early afternoon the netball at Kardinia Park, during which he sustained injury to his left knee. On his evidence he spent only a short time on the Friday night in the company of other employees and possibly a slightly longer period between the fun/run and the netball on the Saturday. Thus, his time available for networking seems to have been minimal.
Mr Hill’s work, as categorised by Mr Ternes and not challenged by the applicant, was that he provided services to customers in relation to Medicare claims, Social Security applications and Child Support matters. Attendance at the Games is not what would be considered incidental to work, there being no relationship between the activities undertaken at the 2015 Games and the provision of services to DHS clients. The Macquarie Dictionary defines incidental as happening or likely to happen, fortuitous or subordinate conjunction with something else, or liable to happen or naturally appertaining to. The courts have considered the concept at length over many decades, with varying conclusions. In Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 the Court said:
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.
The decision in Hatzimanolis has been regarded as an expansive view of the question of association with employment. Mr Hatzimanolis was injured while undertaking a sightseeing tour on a day off work. Several other authorities have qualified the approach. For example, Madgwick J in Military Compensation, Rehabilitation Commission v Roberts (2007) FCA 1 held that the test for injury arising out of employment, provides that:
It is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal. [The latter was quoted with approval in the decision of Telstra Corporation Limited v Bowden]
Was Mr Hill temporarily absent from work at the time of his injury?
The word temporary denotes a short period of time. The Macquarie Dictionary defines it as lasting, existing, serving or effective for a time only; not permanent.
While Mr Ternes distinguished the decision of the High Court in Hatzimanolis on the basis of its facts, the legal interpretation of the High Court remains the authority on the meaning of being temporarily absent from work, albeit a 26 year old authority.
In Hatzimanolis the majority said at page 482:
Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something “in order to carry out his duties” at the time he sustained injury is in many cases simply fictitious. ---
Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this court in Oliver and Danvers.
and at page 483:
... 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. ...
moreover Oliver and the cases which follow it show that :
.. at an interval or interlude in an overall period or episode of work will ordinarily be seen as part of the course of employment if the employer, expressly and implacably, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. ... 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 on a particular way. ...
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”.
Mr Pattenden submitted that Geelong was geographically close enough to Bendigo to be considered an extension of the workplace, despite it being a two and a half hour drive between the two sites. The Tribunal rejects this submission.
The decision in Re Wheele is at odds with most of the authorities relating to the concept of being temporarily absent. In Re Wheele, Senior Member Allen had termed this concept as being “an elastic one”. He illustrated the term with the example of a person on annual leave being temporarily absent from his or her employment; or could they in context simply be said to be “absent” from work. Despite the expansion of the concept, Senior Member Allen found that the attendance was not associated with employment and therefore the claim failed.
This Tribunal does not accept this expanded concept given the legislative history of the Act since 2007, and the Parliament’s intention as expressed in the Explanatory Memorandum that accompanied the Bill (No.54/2007) to the Safety, Rehabilitation and Compensation Other Legislation Amendment Act 2007.
While Mr Hill’s attendance at the 2015 Geelong Games was encouraged at least by his team leader, there was no request or direction to attend and such attendance was not associated with his employment. His absence from work occurred between two discrete periods separated by four and a half days; not an interval as defined. Section 6(1)(c) of the SRC Act is not satisfied and the injury did not arise in the course of work as required by s 5A(1)(b).
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 87 (eighty‑seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
[sgd]........................................................................
Associate
Dated: 26 March 2018
Dates of hearing: 5 to 7 October 2017 Counsel for the Applicant: Mr Karl Pattenden Solicitor for the Applicant: Mr Abraham Ghaleb of Slater & Gordon Lawyers Counsel for the Respondent: Mr Ray Ternes Solicitor for the Respondent: Ms Katherine Stewart of Comcare APPENDIX
APPLICANT
A1Statement of Mr Brian Hill, 'Outline of Evidence of Mr Brian Hill' dated 27 June 2017, including Annexure A.
A23 pages (not paginated, extracted from summons material) Bendigo Hospital File relating to Brian Hill, dated 25 October 2015.
RESPONDENT
R1T-Documents and Supplementary T-Documents.
R2Statement of Mr Gary Stagg, including Annexure 1 and Annexure 2, dated 1 September 2017.
R3Statement of Ms Jolene Miller, including Annexures 1-9, dated 1 September 2017.
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