Hill and Comcare (Compensation)

Case [2018] AATA 670

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 149

Comcare v PVYW (2013) 250 CLR 246

REASONS FOR DECISION

Miss E A Shanahan, Member

26 March 2018

  1. 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.

  2. 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.

  3. 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…

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AGLC
Hill and Comcare (Compensation) [2018] AATA 670
Case
[2018] AATA 670
Decision Date

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning a claim for compensation by Mr Brian Hill against Comcare. Mr Hill, an employee of the Department of Human Services (DHS), sought compensation for an injury sustained while participating in the DHS Games in October 2015. The dispute centred on whether the injury sustained during the games was an injury arising out of or in the course of his employment, as defined by the relevant legislation.

The Tribunal was required to determine whether Mr Hill's participation in the DHS Games, and the subsequent injury, constituted an "injury arising out of or in the course of employment" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Specifically, the Tribunal considered whether the Department had requested, authorised, encouraged, permitted, or induced Mr Hill to attend and participate in the games, thereby bringing his attendance within the scope of his employment.

The Tribunal considered the legal interpretation of "request" under section 6(1)(c)(ii) of the SRC Act, drawing on case law such as *Commonwealth v Lyon*, *Humphrey Earl Limited v Speechley*, and *Commonwealth v Oliver*. These authorities indicate that a request can encompass situations where an employee is reasonably required, expected, or authorised to undertake an activity. The Tribunal noted that while there was no explicit direction for Mr Hill to attend, the Department encouraged employee participation in the games, provided organisational assistance, and had employees dedicated to its coordination. The Tribunal also referred to *Hatzimanolis v ANI Corp Limited*, which established that an employer's encouragement or inducement for an employee to spend an interval in a particular way could bring an activity within the course of employment.

Ultimately, the Tribunal found that while the Department encouraged participation in the DHS Games, and provided some organisational support, there was no evidence of a formal request or inducement for Mr Hill to attend. The games were funded by participant fees and sponsorships, and attendance was open to non-DHS persons. The Tribunal concluded that Mr Hill's participation was not sufficiently connected to his employment to satisfy the requirements of the SRC Act, and therefore his claim for compensation was not successful.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 TRIBUNALMr 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.