Kourtis v Wheelers Hill Primary School Council

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION

Case No. K10309967

CAROL KOURTIS	Plaintiff
v
WHEELERS HILL PRIMARY SCHOOL COUNCIL	Defendant

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MAGISTRATE:	Magistrate M.J. Richards
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26 & 27 February 2020
DATE OF DECISION:	5 May 2020
CASE MAY BE CITED AS:	Kourtis v Wheelers Hill Primary School Council
MEDIUM NEUTRAL CITATION:	[2020] VMC010

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CATCHWORDS – Workers Compensation – Initial acceptance of claim – Acceptance now said to be in error – Admission - Whether injury arose out of or in course of employment – Threshold issue to be determined - Workplace Injury Rehabilitation and Compensation Act 2013.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr D Dealehr	Cottier Stenning
For the Defendant	Mr B McKenzie	Minter Ellison

HIS HONOUR:

INTRODUCTION

Ms Kourtis has completed a claim for compensation for weekly payments and medical and like expenses dated 31 March 2017 essentially alleging injuries to her wrists, right knee and ankle as a result of a fall in the school staff car park whilst walking from her car back to the school canteen on 24 March 2017. The claim for compensation stated that the fall occurred at 3.15pm on that day which was a Friday. Ms Kourtis has not returned to work.
Liability for the claim for compensation was accepted by Gallagher Bassett Services Pty Ltd, the Defendant’s Workcover Agent at the time, in accordance with the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013.
By notice dated 30 November 2017, the Defendant’s Workcover Agent terminated Ms Kourtis’s entitlements to weekly payments of compensation and medical and like expenses on the grounds that:
(i)She was no longer incapacitated for work;
(ii)Alternatively, her capacity for work was no longer materially contributed to by an injury arising out of or in the course of her employment;
(iii)She no longer required any medical treatment for injury.
The dispute was referred to the Accident Compensation Conciliation Service.
A conciliation outcome certificate was issued on 16 February 2018 which purported to resolve the dispute on the following basis:
(i)Ms Kourtis was to receive weekly payments of compensation from 21 December 2017 to 31 May 2018 (inclusive), subject to the provision of valid certificates of capacity;
(ii)Ms Kourtis was to be paid the reasonable costs of medical and like services relating to the right knee, right wrist and right elbow injuries (only) up until 16 February 2018 (inclusive);
(iii)Reasonable costs of two further consultations with Mr Fuller were to be used at the discretion of Ms Kourtis by 30 June 2018;
(iv)Reasonable costs of six further chiropractic services to be used at the discretion of Ms Kourtis by 30 June 2018.
On or about 24 April 2018 Ms Kourtis requested that weekly payments of compensation and medical and like expenses, including right knee surgery be reinstated.
The request for reinstatement was rejected by the Defendant’s Workcover Agent on 2 May 2018.
Ms. Kourtis has issued proceedings in this Court.
By way of an Amended Defence dated 12 December 2019 the Defendant now maintains (inter alia) that the plaintiff’s injuries did not occur out of or in the course of her employment with the Defendant.
In particular, the Defendant states that while the claim for weekly payments and medical and like expenses in relation to the incident on 24 March 2017 was initially admitted, the claim was accepted in error by Gallagher Bassett, as deposed to in the affidavit of Tate Riach sworn 18 October 2019.
A subsequent impairment benefits claim dated 16 July 2018 was also stated to have been accepted in error by Allianz Worker’s Compensation (Victoria) Limited, as deposed to in the affidavit of Terrence McDermott sworn 17 October 2019.
I am now asked to decide whether Ms Kourtis has sustained injuries arising out of or in the course of her employment as a result of the fall on 24 March 2017.
The Defendant concedes that it would be open to the Court to find that the Plaintiff was “in the course of employment” if as a matter of fact the Court finds that the Plaintiff was in fact in the process of returning to the canteen to lock up cupboards and a fridge, in that it concedes this was part of her ordinary role as Canteen Manager.
It was agreed between the parties that the matter would be argued as a threshold issue without determining the overall merits of the case.

EVIDENCE

Ms Kourtis was born on 1 December 1962 and is currently aged 57. She commenced employment with the Defendant in the school canteen in or about 2011. She worked on a part-time basis as the Canteen Manager. She was paid to work five hours a day on Monday, Wednesday and Friday. She was also paid for an extra hour a week to deal with administrative issues. She usually performed this work at home. In total her hours of work were 16 hours a week.
Apart from working in the canteen, her duties included ordering food and arranging the roster for volunteers to work in the canteen. She was responsible for cleaning and closing the canteen at the end of the day. On occasions she would take home muffin and jelly mix and make muffins and cups of jelly at home. The muffins and jelly cups would then be sold in the canteen. The proceeds of the sale would go the Defendant.
When working Ms Kourtis would park her car in the staff carpark which was adjacent to the building where the canteen and aftercare program was situated.
The school canteen shared a common area with the Defendant’s aftercare program.
The aftercare program would use the building where the canteen was situated between 7.00am to 9.00am and from 3.00pm to 6.00pm Monday to Friday.
The canteen would normally operate in the building between 9.00am to 2.30pm. Ms. Kourtis gave evidence that she was supposed to finish work in the canteen by 2.30pm so that the aftercare staff could commence setting up in the area for the 3.00pm start in the afternoon.
Ms Kourtis was shown a document titled “Wheelers Hill Canteen: Daily Timetable” which set out the various daily activities to be undertaken by those people working in the canteen. This document had been prepared by Ms Kourtis as a guide for the canteen staff. In particular, the timetable set out the following duties to be completed at the end of the day:
1:50 - Wash up dishes, clean benches, sweep floors.
2.15 – Complete stocktake when required, allow OHSC to start preparation

Ms Kourtis said that she tried hard to close the canteen at 2.30pm but sometimes she would go over time. This was particularly so on a Friday which was usually a busy day cleaning and washing up.
Ms Kourtis said that when she usually finished work, she would pack up the canteen, load the car and go home. She would then come back to school to pick up her daughter from a pre-arranged meeting point.

Ms Kourtis said that by the time she finished cleaning up the canteen on 24 March 2017 it would have been 2.40pm or 2.45pm. She said that was the regular time she would finish in the canteen on a Friday and she would not normally finish after that time on a Friday.
Ms. Kourtis said she then left the canteen at 2.50pm to take two containers of muffin mix and jelly to her car in the staff carpark. She was going to make muffins and cups of jelly on the weekend. She placed the items in the boot of her car. She said that she was returning to the canteen to lock the cupboards and fridge and get her handbag when she tripped and fell. She said that the cupboards and fridge had to be locked at the end of the day so that the aftercare children could not open them if they were in the canteen. She said that she had her car keys but did not have her handbag or purse which were still in the canteen. She had separate keys for the canteen cupboards and fridge. The canteen keys were in one of the cupboard doors.
Ms Kourtis said that as she left the canteen to take the containers to the car there were at least two aftercare staff in the canteen. One of them was an assistant after-care worker called Peter. Peter spoke to her as she was leaving with the containers and said, “have a good weekend’. Ms Kourtis said she replied to Peter and said that she was not finished yet and that she still had to get her handbag.
Ms Kourtis said that she did not leave the canteen carrying shopping bags and said she was coming back to the canteen to lock up and get her belongings. She denied that she said goodbye.
Ms Kourtis gave evidence that, after falling, another man, who she thought was a school parent, helped her up. She said that she could not stand. Someone was sent to the sickbay. Eventually the Assistant Principal, Joshua Crozier, came to help her to the sickbay.
Ms. Kourtis said that the sickbay was at the other end of the school. She hobbled to the sickbay with assistance. She said that she was bleeding from her right knee, the palms of her hands and her nose.
Ms Kourtis said that Mr Crozier applied a cold press to the right knee and then applied some cream and bandaged the knee. He also put a dressing on her right elbow which was grazed.
Ms. Kourtis said that while she was in the sickbay, the school bell went at 3.30pm and Mr Crozier went to the office to page her daughter, Chloe, who was a student at the school, to come to the office.
Ms Kourtis then went to Mr Crozier’s office to do an incident report. She met Chloe there. Ms. Kourtis said that she was in the office at approximately 3.50pm. Ms. Kourtis said she was asked a number of questions by Mr Crozier which she answered.
A typed Incident Summary Report was completed by Mr Crozier on behalf of Ms. Kourtis [exhibit A]. The date of the incident was recorded as 24 March 2017. The time of the incident was recorded as 3.20pm. The date the incident report was logged was 24 March 2017. The time the incident report was logged was 3.56pm.
The description of the incident in the report was as follows:
Carol was walking back from dropping some items off in her car. She tripped on the school carpark gutter and fell on her right knee and both hands. Carol also grazed her nose. A parent offered assistance and first aid was given. Carol has grazes on her right knee and palms.

Ms Kourtis agreed that this was a fair description of how the incident happened. However, she disagreed with the time of the incident recorded in the incident report.
Upon finishing the incident summary report, Mr Crozier asked Ms Kourtis if she was able to drive home. Ms Kourtis said she was.
Ms Kourtis said that as she left Mr Crozier’s office, she saw Mandy Yorke, an assistant teacher. Chloe and Ms Yorke then helped Ms Kourtis go back to the canteen to get her handbag. Ms Kourtis said that she also wanted to make sure that the cupboards were locked. Ms Kourtis said that Ms Yorke locked the cupboards and got her handbag. Ms Kourtis said that waited outside the canteen with her daughter. Ms Kourtis said Ms Yorke then came out of the canteen and helped Ms Kourtis to her car with her daughter. Ms Kourtis said that she sat in her car for a little bit and then drove home.
Ms Kourtis gave evidence about the carpark. She said the school staff parked there. Students were not permitted in the carpark. Ms Kourtis said that she had never asked her daughter to meet her in the carpark after school.
The arrangement was that she would meet her daughter at the school gate in Whites Lane. Ms Kourtis said that she would park in a Court off Whites Lane. After school, her daughter would wait to be collected. If Ms Kourtis was not there her daughter would walk to the Court where the car was parked and meet her there.
Ms Kourtis gave evidence that after her claim was accepted, she saw various doctors on behalf of her solicitor and the Defendant’s Workcover Agent.
Ms Kourtis saw Dr David Kennedy on behalf of her then lawyers, Carbone Lawyers.
In a report dated 21 November 2018 [exhibit 4], Dr Kennedy recorded the details of the incident as follows:
Mrs Kourtis states that on 24 March 2017 she had finished her work in the canteen and was taking some objects, as well as her bag, to her car at the staff car park and then was heading back to the canteen area to pick up her daughter at the end of school. Whilst she was walking across the car park her right foot got caught in a large crack in the bitumen and she fell heavily on her right knee and her arms were outstretched and she injured her left elbow joint. This incident was observed by several people in the car park and the assistant principal was notified and the assistant principal assisted Mrs Kourtis and she lodged an incident report. She then got her daughter and drove home.
Ms Kourtis said that the history recorded by Dr Kennedy was wrong and inaccurate.
In a report dated 18 March 2019, Mr Doig recorded that Ms Kourtis had completed her work about 3.00pm on the day of the fall. Mr Doig stated that Ms Kourtis had placed the muffin mixture, jelly and her handbag in the car and was going to pick up her daughter from outside the canteen. Ms Kourtis said that she did not give that history to Mr Doig.
In a report dated 13 May 2019 [exhibit F], Dr Bloom recorded the history of injury as follows:
Mrs Kourtis said that the injury occurred on Friday 24 March 2017. She said that she had completed her work that day by about 3pm, and then, before picking her daughter up from the same school, placed her handbag and some other things including a box of jelly powder and plastic cups etc into her car that was situated in the car park adjacent to the canteen. She then locked her car, and with her car keys in hand she headed back to the school area where she to meet her daughter somewhere outside of the canteen area. It was whilst crossing the car park from her car to where she was to meet her daughter that her left foot tripped in a badly maintained area of the car park causing her to fall onto her right knee, right arm and hands. She described this as a heavy fall and required help to get up. She said that she experienced pain in the front of her right knee.
Mrs Kourtis said that the deputy principal helped her back to the office where her grazed right knee was cleaned up and she made an incident report. She then said that she was able to drive her daughter home.
Ms Kourtis said that Dr Bloom’s history with respect to the circumstances of the incident was not accurate.
Mr Dealehr referred Ms Kourtis to the circumstances of injury as set out by Katarina Clarke in a report on behalf of CoWork Pty Ltd dated 20 September 2019[exhibit G]. Ms Clarke reported the injury circumstances as follows:
Ms Kourtis told me it was about 2.30 on a Friday. I was taking my jellies to the car to do over the weekend and bring back on a Monday. I went to put everything in the car, jellies and cups to make them at home, my handbag. She stated that she fell at “about 2.45, something like that” and that “I didn’t have anything in my hands but my keys. I was going to meet my daughter.”
Ms Clarke noted that there was a discrepancy regarding the time of the incident as the time cited in the Statement of Claim (presumably she meant the claim for compensation) was 3.15pm and in the Incident Summary Report it was 3.20pm.
Ms Kourtis agreed that she told Ms Clarke that the incident occurred at 2.45pm on a Friday. She denied saying that she put her handbag in the car and that she was going to meet my daughter.
In cross-examination, Ms Kourtis agreed that the after-care staff came into the canteen area to set up from 3.00pm on a Friday and that she had to be out of the canteen area by 3.00pm. Ms Koutis denied being there at 3.00pm on the Friday in question and said that she left the canteen area at 2.45pm.
Ms Kourtis gave evidence that Ms Veale was incorrect in saying that she saw Ms Kourtis leaving the canteen at about 3.00pm on the Friday. Ms Kourtis also said that Ms Veal was incorrect in saying that she saw her carrying shopping bags that were green in colour of a ‘Safeway’ type. Ms Kourtis also said that Ms Veal was incorrect in saying that Ms Kourtis had her handbag with her and that she said goodbye to Ms Veal and two other staff.
The evidence of Ms Kourtis was that she said to Ms Veal that she was ‘not finished yet’.
The Incident Summary Report completed by Mr Crozier was shown to Ms Kourtis. Ms Kourtis had not seen the document before. Ms Kourtis agreed that she sat with Mr Crozier in his office while he asked her questions and completed the report on his computer. Ms Kourtis could not recall whether Mr Crozier asked her to look at the computer screen to check the report but said he might have done that. Ms Kourtis agreed that the report was logged in at 3.56pm.
Ms Kourtis agreed that the description of the incident as recorded in the report was correct. However, Ms Kourtis did not agree that the time of the incident was 3.20pm as recorded in the report. She said the incident occurred before 3.00pm. Ms Kourtis said that she told Mr Crozier that it would have been about 2.50pm when she fell.

Ms Kourtis said that she knew what time she left the canteen to put the items in her car and what time she fell. She further said that when she was in the sickbay, she heard the school bell go and she told them to page her daughter.
Ms Kourtis said she could not recall Mr Crozier asking her to check the Incident Summary Report on the computer screen once it had been completed.
Ms Kourtis was shown the claim for compensation dated 31 March 2017 [Exhibit B]. She agreed that she had completed the claim form and that it was a serious document. She agreed that the injuries, what she had been doing before the incident, and the actual incident, had been accurately described by herself.
Ms Kourtis agreed that the date recorded in the claim form was correct. Ms Kourtis said that the time of the fall, namely 3.15pm, was not recorded correct. Ms Kourtis said that 3.15pm was the time when she was in the sickbay and that the incident had occurred before that.
Ms Kourtis agreed that she had no difficulty reading and writing English.
Mr McKenzie asked Ms Kourtis why she had not told Mr Crozier, as part of the Incident Summary Report, that she was going back to the canteen to get her handbag and lock up the cupboards when she fell. Ms Kourtis said that she could not recall what she told Mr Crozier.
Mr McKenzie questioned Ms Kourtis about the impairment benefits claim form dated 16 July 2018 [Exhibit C]. Ms Kourtis said that the claim form had been completed by her solicitor, Mr Paul Simon. She agreed that Mr Simon asked her questions at the time he completed the claim form and that she had signed the claim form. She agreed that the described injuries were correct. She agreed that she did not correct Mr Simon when he stated that the incident occurred on 24 March 2017 at 3.15pm. Again, Ms Kourtis said that 3.15pm was recorded because that was the time when she was in the sick bay. Ms Kourtis acknowledged that the claim form was a serious document.
Ms Kourtis was shown photographs of the school area between the staff carpark and the building where the canteen and after-care area was situated [Exhibit D]
Ms Kourtis agreed that photographs 1 and 2 depicted the gate leading to Whites Lane. Ms Kourtis said that, to the left of the gate, was Beaver Court where Ms Kourtis would park her car if she had gone home earlier. She said that she would then come back to collect her daughter.
There was a large bush on the right side leading to the gate. Mr McKenzie asked whether Ms Kourtis was frequently observed by staff meeting her daughter near the bush leading to the gate after school. Ms Kourtis agreed with this proposition.
Mr McKenzie put to Ms Kourtis that on 24 March 2017 she was heading to meet her daughter near the bush when she fell. Ms Kourtis disagreed. Ms Kourtis then said that she generally met her daughter on the other side of the fence where she would be talking to the other mothers.

Mr McKenzie asked Ms Kourtis about Dr Kennedy’s report dated 21 November 2018 [exhibit E]. She denied that she told Dr Kennedy that she had finished work. She denied that she told him that she had taken her bag to her car and was going back to pick up her daughter at the end of school. Ms Kourtis believed that she told Dr Kennedy that she was going back to lock up the canteen but had no clear recollection that she did say this.
Ms Kourtis said that she had previously read the report of Dr. Kennedy and that she had mentioned to Mr Simon that the history was wrong.
Ms Kourtis was asked about Dr Bloom’s examination and report dated 13 May 2019. She agreed that Dr Bloom had seen her for almost 2 hours. Dr Bloom recorded in his report that the interview and examination commenced at 8.35am and concluded at 10.25am. Ms Kourtis agreed with this. As previously stated, she did not agree with the history of injury recorded by Dr Bloom. She denied saying that she finished work on 24 March 2017 at 3.00pm, that she placed her handbag in her car and was then going back to the school to meet her daughter somewhere outside of the canteen area.
Ms Kourtis agreed with Mr McKenzie that she saw Dr Bloom with respect to her compensation claim and that it was important to tell Dr Bloom exactly what had happened. When asked why there was no mention of her going back to lock up the canteen, Ms Kourtis said that she could not recall whether she gave that history to Dr Bloom or not.
Ms Kourtis was asked about the report from CoWork Pty Ltd dated 20 September 2019. Ms Kourtis agreed that, when she was interviewed by Ms Clarke, there was also a secretary in the room taking notes. Ms Kourtis said that the injury circumstances were accurate apart from the mention of her handbag being put in the car and going to meet her daughter.
Mr McKenzie referred Ms Kourtis to the following quote recorded by Ms Clarke in the CoWork report:
Ms Kourtis told me, “it was getting close to 3.00 o’clock”. The incident happened “on walking back to the canteen” where Ms Kourtis was going to get her handbag and then continue to meet her daughter who was finishing school for the day.
Ms Kourtis denied saying the above.
Mr McKenzie asked Ms Kourtis why nothing was recorded in the report about going back to the canteen to lock up. Ms Kourtis said that she did not recall what she said to Ms Clarke.
Mr McKenzie asked Ms Kourtis as to why no doctor in this case had recorded that she was going back to the canteen to lock up. Ms Kourtis said that she did not recall what she had told the doctors.
Ms Kourtis was asked about her evidence concerning Ms Yorke assisting her leave Mr Crozier’s office and locking up the canteen. Ms Kourtis said that she could not recall whether she gave the keys to Ms Yorke. Ms Kourtis said that she was in too much pain at the time. Ms Kourtis agreed that Ms Yorke was a Teacher’s aide and not part of the regular canteen staff. Ms Kourtis said that Ms Yorke helped her to her car.
Mr McKenzie put to Ms Kourtis that Ms Yorke was not at work on 24 March 2017 and that the records of the Defendant showed that. Ms Kourtis said she was surprised by this and that she may have been mistaken in saying that Ms Yorke helped her from Mr Crozier’s office. Ms Kourtis said that she also tried to contact Ms Yorke, but she had left the school.
Mr McKenzie asked Ms Kourtis whether she knew Kathryn McPherson, a teacher’s aide at the school. Ms Kourtis said that she did not know her.
Mr McKenzie said that Ms McPherson would say that she helped Ms Kourtis to the canteen after she fell and that she left Ms Kourtis there with a glass of water. At the time Ms McPherson had a special needs student with her. Ms McPherson would say that she did not lock up the canteen and had nothing more to do with Ms Kourtis. Ms Kourtis said that she could not recall being helped by Ms McPherson and could only recall Mr Crozier helping her.

Ms Kourtis was re-examined and asked to explain the pain she was in after she had fallen. Ms Kourtis gave evidence that she was in extreme pain, was quite fuzzy and was trying to “collect herself”. She said it was possible that Ms McPherson did help her after she fell but said that Ms McPherson did not help her to the canteen. Ms Kourtis said that she was helped by Mr Crozier after about 10 minutes and that she remembered going straight to the sickbay. She gave evidence that it would normally take 2 minutes to walk to the sickbay from the carpark, but it took her 10 minutes after she fell. She said that she was distressed and crying and was attended to in the sickbay for 15 minutes.
Ms Kourtis gave evidence that Mr Crozier’s office was opposite the sickbay. She said when she completed the Incident Summary Report with Mr Crozier, she was still in extreme pain and her concentration levels were low. She was asked to look at the Incident Summary Report. She gave evidence that Mr Crozier did not ask her whether she had finished work for the day and that she told Mr Crozier she was going back to the canteen to get her handbag. Ms Kourtis said that she left Mr Crozier’s office with her daughter and someone else who she believed was Ms Yorke. She said that she was in so much pain that she now cannot recall what conversation she had with Mr Crozier.
In re-examination Ms Kourtis gave evidence that the time of 3.15pm on the claim for compensation was the time that she had attended the sickbay and was not the time of her fall. Ms Kourtis said that when she completed the claim for compensation there was no issue about whether she had fallen at the end of her working day, or out of work hours, and that the issue was not relevant at the time.
With respect to the impairment benefits claim, Ms Kourtis gave evidence that she did not complete it and that Mr Simon, her solicitor, filled it out.
Ms Kourtis said that when she collected her daughter after school, she would occasionally wait outside the fence where the bush was situated. [Exhibit D, photo 2]. Ms Kourtis said that the normal pick up spot was in Beaver Court which was to the left of the park as you looked from the school gate.

Ms Kourtis gave evidence that she when she saw Dr Bloom, she was with her husband. She said at the start of the interview, Dr Bloom was not clear as to why she was there, as he did not have any paperwork. He then proceeded to ask her questions which she answered. At the end of the interview, Dr. Bloom was handed a file by one of his staff. She gave evidence that Dr Bloom then said that he would cross-reference the file with his notes of the interview
Sarah Kerle gave evidence.
Ms Kerle she that in 2017 she was working in the school canteen as a volunteer. Ms Kerle said that Ms Kourtis was the canteen manager and that she was, in effect, second in charge to Ms Kourtis. She said she was familiar with the canteen timetable that Ms Kourtis had prepared and that the timetable was a guide for the canteen staff as to how the canteen should be run.
Ms Kerle said that the canteen would normally close between 2.00pm and 2.30pm. Ms Kerle said that the canteen shared space with the school aftercare program.
Ms Kerle said that the canteen staff were supposed to be out of the canteen by 3.00pm in the afternoon for the aftercare change over. Before that, the last task to do in the canteen was to lock the cupboards and the fridge with a key and then take the key to the administration office. When Ms Kourtis was not working in the canteen, her daughter, Chloe, would collect the key for her mother.
Ms Kerle said that there was a staff carpark next door to the canteen. Ms Kerle said that school children were not allowed in the carpark.
Ms Kerle said that she had never seen Chloe picked up by her mother in the canteen or the carpark after school.
Chloe Kourtis, the plaintiff’s daughter gave evidence. She attended the Wheeler’s Hill Primary School. In March 2017 she was 12 years of age.
Chloe said that on 24 March 2017 she was paged over the school loudspeaker and asked to go to sickbay. She was in class at the time and she was paged about 3.30pm. She went to sickbay and waited outside for about 5 minutes. Her mother came out of the room crying and she recalls her mother having a bandage on her right knee and, maybe, a bandage on her elbow. Chloe said that her mother was called into Mr Crozier’s office and she waited outside. Chloe said that her mother was in the office for about 10 minutes.
Chloe said her mother left the office and was helped to the canteen by Ms Yorke. Chole and her mother waited outside the canteen while Ms Yorke went inside. Chloe said Ms Yorke then came out of the canteen with her mother’s handbag and keys. Both Chloe and Ms Yorke helped her mother to the car. Her mother than drove slowly home. Her mother sat down inside the house. Chloe said that she got her mother an icepack and tried to unpack the car. Chole said that she took two sizable containers and a shopping bag from the from the boot of the car. Chloe thought that there were scales in the shopping bag.
Chole gave evidence that she had never been collected from the canteen area of the school by her mother as no-one was allowed in the carpark. Chole said that she was normally picked up from a court around the school.
Chloe gave evidence that she was familiar with the canteen and that the area was shared by the aftercare program. She was unaware of the time when after-care operated. Chloe gave evidence that Sarah Kerle, who worked part-time in the canteen, sometimes closed the canteen when her mother was away and would give Chloe the keys. The keys were for the cupboards and the front door. Sometimes Chloe would collect the keys from the office if they had been left there by someone who worked that day.
Mr Simon, the solicitor acting for Ms Kourtis in this proceeding, gave evidence.
Mr Simon gave evidence about the impairment benefits claim form dated 16 July 2018 and said that he had completed it on behalf of Ms Kourtis. Mr Simon said that the date and time of the accident was based on instructions from Ms Kourtis and from looking at the original claim for compensation.
In cross-examination, Mr Simon agreed that the impairment benefits claim form was an important document with respect to the details of the date and time of the incident being correct. Mr Simon said that he could not recall whether Ms Kourtis was present when he completed the form. Mr Simon said that he read the details of the claim form to Ms Kourtis and she signed it in his presence.
Mr Simon gave evidence that he copied what he put in the impairment benefits claim form from the weekly payments claim form so that it would be consistent. Mr Simon said that he did not discuss the time of the incident with Ms Kourtis.
Mr Simon said that the time of the incident was first discussed with Ms Kourtis when it became an issue following the history of injury recorded by Dr Kennedy in his report dated 20 November 2018.
Mr Simon gave evidence that he read the report of Dr Kennedy but that it did not cause him any concern. When asked why, Mr Simon said that Ms Kourtis was working when she left the canteen and he had no concerns about Dr Kennedy recording that Ms Kourtis was going back to pick up her daughter.

100.Mr Simon gave evidence that he could not recall exactly when Ms Kourtis first raised the issue of Dr. Kennedy’s history, but it was in the lead up to when the proceeding was first listed for hearing on 24 October 2019.
101.Mr Simon gave evidence that he did not think it was necessary to clarify Dr Kennedy’s report. Mr Simon said that the proceeding was obviously going to be litigated and he, and Ms Kourtis, did not see the issue the same way as the defendant did.
102.Mr Simon could not say whether Ms Kourtis specifically discussed Dr Kennedy’s report with him in 2018 but said that he and she had discussed all issues.

103.Mr Simon denied that he had deliberately decided not to get a further report from Dr Kennedy. Mr Simon said that he believed that the injuries sustained by Ms Kourtis were sustained in the course of her employment and, on her instructions, she had not completed her work duties when she fell in the carpark.
104.Mr Simon said that he was first made aware that there an issue about the work circumstances of the accident when he spoke to the defendant’s solicitor on the phone. The proceeding had been issued for some months by then. Mr Simon said the work circumstances was certainly an issue by 24 October 2019
105.The Defendant’s solicitors filed an Amended Defence on 12 December 2019. Mr Simon said that the Amended Defence deleted the jurisdictional defence that had initially been pleaded and specifically pleaded that the plaintiff’s injury did not occur out of or in the course of her employment with the defendant (paragraph 4(c)).
106.I note that the original Defence filed on 15 April 2019 also raised the issue that the plaintiff’s injury did not arise out of or in her employment (paragraph 13(d)).
107.The plaintiff’s husband, Steve Kourtis, gave evidence. Mr Kourtis said that he was familiar with the canteen and the duties involved as he had helped in the canteen on occasions. As the canteen shared the area with the after
108.care program, everything had to be locked in the fridge and cupboards when the canteen did not operate.
109.Mr Kourtis said that the canteen would open at 9.00am and close between 2.00pm and 3.00pm depending on the day. After-care staff would arrive between 2.00pm and 3.00pm and wait in the lane while the canteen was being cleaned.
110.Mr Kourtis said that, apart from working in the canteen, his wife would also work after hours and on weekends doing some book-keeping work and shopping at Woolworths.
111.Mr Koutis said that he had attended medical examinations with his wife. On 13 May 2019 Mr Kourtis said that he attended Dr Bloom’s rooms with his wife. Mr Kourtis said that while they were waiting, Dr Bloom told them that he did not have any documents and would chase it up. They both went into Dr Bloom’s rooms. Dr Bloom proceeded to interview Ms Kourtis and asked her what happened. Dr Bloom took notes in a notebook. Mr Kourtis said that Dr Bloom was being guided by what his wife said.
112.The evidence is that Dr Bloom emailed Paula Attard at Minter Ellison (the Defendant’s solicitor) at 8.16 am on 13 May 2017 to say that the paperwork for Carol Courts (sic) had not arrived {exhibit M]. Ms Attard replied to Dr Bloom’s email at 9.42am and said that the documents had been delivered to Dr Bloom’s office at 9.13am that morning. Dr Bloom replied to Ms Attard’s email at 12.15pm and said that the paperwork had arrived half-way through the consultation. The paperwork was a letter of instruction addressed to Dr Bloom dated 10 May 2019.
113.The letter of instruction to Dr Bloom described the circumstances of the incident as follows:
The plaintiff is a 56 year old former school canteen manager, who sustained injuries on 24 March 2017 when she was walking back to the school canteen after placing her belongings into her car in the staff/parents car park, in the process of which she tripped and fell on the gutter annexed to the car park.
The letter of instruction further stated;
On 24 March 2017 at approximately 3.10pm Ms Sharon Veale, after/before hours school care manager at the school, recalls seeing the plaintiff leave the canteen with several shopping bags in tow, saying goodbye to everyone on her way out. The plaintiff has reported to Dr Graeme Doig, general surgeon, on 18 March 2019 that she was ‘carrying food to her car as she would often make the children puddings and jellies at home’.
At approximately 3.15pm (according to the claim form) or 3.20pm (according to the incident report) the plaintiff was ‘walking back to the canteen’ from dropping items off in her car when she tripped on the school carpark gutter, landing on her right knee and both hands. The reason she was walking back to the canteen is somewhat unknown, but Dr David Kennedy, sports physician, took a history in a report dated 21 November 2018 as follows:
The plaintiff states that on 24 March 2018 (sic) she had finished her work in the canteen and was taking some objects, as well as her bag, to the car at the staff car park and then was heading back to the canteen area to pick up her daughter at the end of school.

114.Mr Kourtis was asked to look at the notes of Dr Bloom [Exhibit I]. Mr Kourtis said that he had seen the notes the night before. Mr Kourtis was asked whether the notes of Dr Bloom reflected what he saw Dr Bloom take. Mr Kourtis said that there appeared to be additions to the notes, and they appeared to be different to the notes that he saw Dr Bloom take at the time. Mr Kourtis said that the notes were not an accurate reflection of what his wife said to Dr Bloom at the time.
115.Mr Kourtis said the following:
(a) His wife told Dr Bloom that she was taking Stilnox, but this was not specifically mentioned in his report (I note on page 4 of his report that Dr Bloom said Ms Kourtis had been prescribed antidepressant medications);
(b) In his notes, Dr Bloom said that his wife had been involved in 2 motor vehicle accidents but his wife told Dr Bloom that she had been involved in 3 motor vehicle accidents (I note on page 3 of his report that Dr Bloom said that Ms Kourtis had been involved in 5 motor vehicle accidents);

(c) His wife did not tell Dr Bloom that she locked her car after going to the carpark (as stated on page 3 of the report);

(d) Dr Bloom did not mention in the notes that his wife suffered concussion as a result of a fall that she subsequently had at home and was unconscious for 1 ½ minutes;

(e) He had no recollection of Dr Bloom writing ½ page of notes on the last page of his notes;

(f) His wife did not tell Dr Bloom that she did not undertake housework or shopping as recorded on page 5 of the report. His wife said that she did minimal housework and shopping.

116.Mr Kourtis said that Dr Bloom was embarrassed about not having the paperwork at the start of the interview. About 75 minutes into the interview the paperwork arrived. and Dr Bloom asked Ms Kourtis to wait. Dr Bloom then asked Ms Kourtis a couple of questions and took some more notes. Mr Kourtis said that, at the end of the interview, Dr Bloom asked his wife what items she had taken to her car. Mr Kourtis said that his wife told Dr Bloom that she had taken containers of jelly and muffins to the car and was going was going back to get her handbag.
117.That was the evidence on behalf of the Plaintiff with respect to the threshold issue.
118.Kathryn McPherson gave evidence. She said she was a Teacher’s Aid employed by the Defendant at the time that Ms Kourtis was injured.
119.Ms McPherson said that at the time Ms Kourtis fell on 24 March 2017, she was looking after a school student who was a high maintenance child with behavioural needs. Ms McPherson said that she saw Ms Kourtis trip in the carpark and fall to the ground. Ms McPherson and the student walked over to help. She asked the student to get some ice from the canteen. Ms McPherson said that she helped Ms Kourtis and proceeded to walk her into the canteen area. She took Ms Kourtis through the same door used by the aftercare program and the canteen. The kitchen area of the canteen was to the right of the door as you walked through the door. They met the student coming back with the icepack as they went up the ramp to the canteen area. Ms McPherson said she walked Ms Kourtis into the canteen and sat her down with the icepack. She and the student then left. Ms McPherson said that she was not given any keys to lock up the cupboards and the fridge in the kitchen.
120.Ms McPherson did not know the actual time Ms Kourtis fell but said it happened late afternoon and was not far off home time at 3.30pm. Ms McPherson said the canteen had closed. She said she thought Ms Kourtis was on the ground for 1 to 2 minutes. She was not sure how long it took to walk to the canteen but thought it was a couple of minutes.

121.Ms McPherson could not recall Ms Kourtis being helped by a school parent called Peter while she was on the ground. Ms McPherson said that she could not recall whether she helped Ms Kourtis up from the ground but did say that she helped Ms Kourtis walk up the ramp on the way to the canteen. Ms McPherson said that she did not take Ms Kourtis to first aid.
122.Sharon Veale, the Out of School Hours Care Manager, employed by the defendant, gave evidence.
123.Ms Veale was shown the five colour photographs of the school area around the carpark and canteen.
124.Ms Veale said that photograph 1 depicted the area of the school where the after-care area was situated to the right. Photograph 2 depicted the gate leading to Whites Lane. Photograph 3 depicted the view from the after-care area to the staff carpark. Photograph 4 depicted the door to the canteen and the after-care area. The door had a sign saying Canteen. The sign was not there in March 2017.
125.Ms Veale produced a hand drawing of the after-care area and canteen that she had done [Exhibit N]. The drawing depicted the external door with the canteen sign (as depicted in photograph 4). Ms Veale said that, as you entered the after-care area through that door, there was an internal door to the kitchen area on the right. To the left of the external door was another external door at the back of the after-care area and, in the left-hand corner of the after-care area, was a glass window overlooking the front of the school. There was a window in the wall separating the kitchen and the after-care area.
126.Ms Veale said that the kitchen area had fridges, a freezer and cupboards. Some of these were shared by aftercare and the canteen. Apart from these joint cupboards, the cupboards in the kitchen area had locks. The cupboards in the aftercare area did not have locks apart from the knife drawer. The joint cupboards in the kitchen area used by after-care and the canteen were not locked and contained food, plates, cups, etc.
127.Ms Veale said there was a fridge in the kitchen that was against the wall to the left of the internal door. This fridge had a small padlock on the door.
128.Ms Veale said that the aftercare staff used the canteen area from 7.00am to 9.00am. In the afternoon, the aftercare staff would usually commence at 3.00pm. In 2017, Ms Veale said that the aftercare staff would commence at 3.00pm on Tuesday, Wednesday and Thursday. On Monday and Friday, the aftercare staff would sometimes commence earlier for a 3.00pm start as they needed more time to set up as there were more children.
129.Ms Veale said that she was aware that Ms Kourtis had fallen in the carpark on 24 March 2017. Ms Veale gave evidence that she worked in an office in the general part of the school. She said that she left her office in the school and had come down to the aftercare area about 5 to 10 minutes before 3.00pm. Ms Veale said that she saw Ms Kourtis leaving the canteen area at about 3.05pm. As far as Ms Veale was concerned, Ms Kourtis was heading home. Ms Veale said that she thought she said goodbye to Ms Kourtis.
130.Ms Veale said that Ms Kourtis had her handbag and a shopping bag when she left. The shopping bag was green, made of material and had a “W” on the outside. She did not know what was in the bag. It is possible that she was carrying some containers, but she did not remember. By this stage, the after-care staff had turned up and were setting up the aftercare area.
131.Ms Veale said that she was standing at a bench in the aftercare area against the wall using a computer at this time. The bench was next to the other external door. Ms Veale was unaware if Ms Kourtis had locked the cupboards in the kitchen during the time she was there. She said that the padlock on the fridge was visible as you went into the kitchen and that you could tell if the fridge was locked or not.
132.Ms Veale said that there were no other canteen staff, apart from Ms Kourtis, present at the change over to the aftercare program on that afternoon. Ms Kourtis was the last person from the canteen staff there. She did not see Ms Kourtis again after she left the canteen area. Ms Veale said that no-one else locked the cupboards and the fridge in the kitchen that night.
133.Ms Veale said that between 3.00pm and 3.30pm she had gone into the kitchen to speak to the aftercare staff about 3 or 4 times. Ms Veale said that if Ms Kourtis had left her handbag on one of the benches in the kitchen, she would have seen it.
134.Ms Veale said that she noticed that the fridge was locked when she had gone into the kitchen because she saw the padlock on the door.
135.Ms Veale said that a child came in and asked for an icepack after Ms Kourtis left. This was about 3.10pm or 3.15pm. Ms Veale said that this was when she became aware that Ms Kourtis had fallen. She asked the child to slow down and use words to tell her what had happened. The child said that a lady from the canteen had fallen and needed an icepack. Ms Veale said that after giving the child the icepack, she rang Mr Crozier to tell him that Ms Kourtis had fallen.
136.Mr Crozier gave evidence. He was the Assistant Principal at the time. Mr Crozier said that he prepared the Incident Summary Report by entering the information into his computer. He was in his office. Ms Kourtis was present when he did this and sat next to him as he asked her questions and complied the report. Mr Crozier does not recall assisting Ms Kourtis to his office but that it was possible that he did.
137.Mr Crozier gave evidence that he logged onto his computer at 3.56pm to complete the incident summary report. The log in time was recorded in the report. Mr Crozier said that he entered the date as Friday, 24 March 2017. He entered the time of the incident as 3.20pm. Mr Crozier gave evidence that he entered the date and time of the incident after discussions with Ms Kourtis. Mr Crozier said that Ms Kourtis sat to his side and they worked together to complete the report. Mr Crozier said that the description of the incident on page 2 of the report was entered in the third person as he entered exactly what Ms Kourtis said. Mr Crozier said that Ms Kourtis gave him the information and he entered it in the report.
138.Mr Crozier said that, after completing the report, he told Ms Kourtis what he had recorded, and they went through it together. Mr Crozier said that Ms Kourtis was happy with the report. Mr Crozier said that Ms Kourtis did not appear distressed at the time and was not crying. He could not say whether Ms Kourtis was in pain. Mr Crozier said that he did ask Ms Kourtis if she was okay to answer questions and would not have completed the report at that time if he had thought Ms Kourtis was not alright to answer questions.
139.Mr Crozier said that it took about 10 minutes to complete the incident summary report.
140.The handwritten notes of Dr Bloom were tendered [exhibit I]. with respect to the injury, Dr Bloom recorded the following:
Injury-Friday. Supposed to finish at 2.00pm but approx. 3.15 finished for day on 24/3/2017 – finished for day, taking my stuff/things e g paper bags and handbag and jelly powder and cups within plastic box – car in carpark – adjacent to canteen – things in car – ok – heading back to school area outside school area to collect and pick up daughter -left foot caught in pot holed area of carpark surface (poor surface) tripped and fell onto right knee, right arm and hands – ‘a heavy fall’. Helped up – difficult to stand – throbbing pain and grazed front knee – Assistant principal helped me to office- helped clean up grazed knee – incident report – hobbled and drove daughter home….

141.The handwritten notes of Mr Kennedy were tendered [Exhibit 4]. With respect to the date of injury, Mr Kennedy recorded the following:

On 24.3.17 she had finished her work – taking things etc., to her car in staff carpark -then headed back to canteen – walking across carpark and (R) foot caught in large crack in bitumen – she fell heavily on (R)knee with arms outstretched- injured (L) elbow – observed by several people – lodged incident report with assistant principal – got her daughter and went home….
142.An email from Katarina Clarke dated 26 February 2020, including her attached handwritten notes and notes taken by her assistant, Adrienne Trembath, was tendered [Exhibit J]. With respect to the circumstances surrounding the incident, Ms Clarke said the following:
When I was working on the report and reviewing the assistant’s notes, I was surprised to note the discrepancy with regards what Ms Kourtis told us about where she was going when she fell. Specifically, I remember distinctly that she said she went back to the canteen to get her purse and then to meet with her daughter. Getting her purse was the reason she told us that she was heading back to the canteen. I queried this with the assistant and raised the inaccuracy with Jo (our director) as we take particular care to document the interview – which is why we have a note-taker in the room. It was put down to the assistant’s inexperience at the time, and that she is to let me know if she cannot hear clearly (the configuration of the assessment room is such that the workers are facing me, and the assistant is off to the side writing)...
The incident details was (sic) an important point I focussed on in the interview, as this is what your LOI had asked. I asked questions about the specifics and listened intently to ensure I understood clearly what occurred. Consequently, I am confident that Ms Kourtis explained the events as I had captured in my vocational report. It made sense to me that she would leave her handbag in the canteen; rather than carry it back into the school when going to meet her daughter.
143.An affidavit from Tate Riach, a Team Manager at Gallagher Bassett, the Defendant’s Workcover Agent at the time Ms Kourtis’s claim was accepted, was tendered. [Exhibit L] Whilst the claim for compensation was initially accepted, Mr Riach deposed that the claim should have been rejected based on the histories obtained by Dr Kennedy, Dr Bloom and Ms Clarke with respect to the circumstances of the incident. The rejection of the claim would have been on the basis that the injuries did not arise out of or in the course of Ms Kourtis’s employment and/or that employment was not a significant contributing factor to the claimed injuries.
144.An affidavit from Terence McDermott, an Eligibility and Disputes Specialist at Allianz Workers’ Compensation (Victoria) Limited (Allianz), the Defendant’s current Workcover Agent was tendered [Exhibit K]. By notice dated 1 April 2019 Alliance accepted an impairment benefits claim lodged on behalf of Ms Kourtis with respect to the incident on 24 March 2017. Mr McDermott referred to the histories obtained by Dr Kennedy, Dr Bloom and Ms Clarke with respect to the circumstances of the incident. Mr McDermott deposed that, had Allianz been the defendant’s Workcover Agent at the time of the initial claim for compensation, the claim would have been rejected on the basis that the injuries did nor arise out of or in the course of Ms Kourtis’s employment and/or that employment was not a significant contributing factor to the claimed injuries.
145.Mr McDermott further deposed that the impairment benefits claim should also have been rejected on the same grounds.
146.That completes the summary of the evidence.

SUBMISSIONS

147.Both parties have provided written submissions.
148.The Plaintiff’s submission is that at the time of the fall, the plaintiff was, in the course of her ordinary role as the defendant’s canteen manager. She had taken some items from the defendant’s canteen and had placed them in her car (for the purpose of making muffins and jelly cups at home and bringing them back to sell at the canteen). She was in the process of returning to the canteen to pick up her handbag and lock up the canteen’s cupboards and fridge before leaving.
149.The Plaintiff submitted that:

(a)she was performing a task that was within the course of her work duties;
(b)she sustained injuries reasonably incidental to, consequential upon or ancillary to her employment; and
(c)she engaged in an activity which her employer allowed, encouraged and was reasonably incidental to her employment.

150.The Plaintiff submitted that:
(a) employment was a significant contributing factor to her injuries;
(b) there was a temporal connection between her injuries and work;
(c) accordingly, the plaintiff’s accident was in the course of her
employment.

151.Alternatively, the Plaintiff also submits that, at the time of the fall, she had not completed her administrative duties which included, providing from home, administrative reports and cooking products for sale at the canteen.
152.The Defendant takes issue with the plaintiff’s injuries being sustained in the course of her employment.
153.The Defendant’s position is that:
(a) it accepts the plaintiff suffered injury in the incident;
(b) disputes that the plaintiff was in the process of going back to lock
up the canteen;
(b)contends that she was in the process of picking up her daughter
(Chloe).

154.In so doing the plaintiff was not in the course of her employment as a canteen
manager but, rather, performing her role as a parent.
155.With respect to the alternative argument raised by the plaintiff, the defendant submits that there was some vague reference to the plaintiff doing some administrative work at home from time to time but there was no evidence of her carrying documents, a computer or the like when going to her car prior to the incident.

ADMISSION ISSUE

156.The defendant accepts that the claim for weekly payments and medical and like expenses dated 31 March 2017 was accepted by the Workcover Agent initially handling the matter (Gallagher Bassett) and that the claim for impairment benefits dated 17 July 2018 was accepted by the Workcover Agent then handling the matter (Allianz).
157.As a matter of law, the acceptance of liability of the claims does not establish conclusively that the plaintiff has sustained an injury in compensable circumstances.

158.The plaintiff relies upon Ansett Australia Ltd v Taylor [2006] VSCA 171 with respect to the acceptance of the claims and asserts that the acceptance of the claims is an admission of some significance. That is correct. However, the plaintiff does concede that in themselves, these acceptances are not conclusive of the matter.
159.The plaintiff properly makes this concession given the decision of Sednaouni v Amac Corrosion Protection Pty Ltd [2017] VSCA 66. I refer to the following passage at [65]:
“Ansett v Taylor is not authority for any such propositions of law. The observation in Ansett v Taylor that an admission of the type here under discussion ’should ordinarily be regarded as very significant’ is, with respect, undoubtedly true. But it is an observation only, and not a statement of legal principle. To regard the words used in this observation in Ansett v Taylor as if they were provisions of a statute defining in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form would be erroneous.”

160.In considering whether the principle of Ansett v Taylor should be applied, the plaintiff makes the following points:
(a)The defendant has not issued a notice terminating the Plaintiff’s claim
for weekly payments and medical and like expenses on the basis that
the incident did not occur in the course of employment. This was
raised only after proceedings were issued on 4 February 2019.

(b) As a matter of procedural fairness or natural justice, prior to issuing
this proceeding, the defendant failed to seek from the Plaintiff her
comments on whether the accident occurred during the course of
employment.

(c) The Defendant had previously accepted and paid an impairment
benefit claim to the plaintiff, based on the acceptance of the
incident occurring in the course of her employment.

(d)The employer injury claim report dated 31 March 2017 [Exhibit 5]
asked the following question:

Q:“Do you want to provide any additional information that may assist in the determination of liability or the management of this claim?”

The following answer was given:

A: “Carol’s workday concluded at approximately 2pm. She has a student attending the school. Unsure if the trip occurred upon school pickup (after work?).

There is no evidence to suggest the Defendant’s Workcover Agent at the time overlooked this comment before acceptance of the plaintiff claim. It was clearly open to the Defendant to investigate this prior to claim acceptance and no evidence was led to suggest such an investigation did not occur.

(e)The affidavits of Mr Riach and Mr McDermott do not assist the court
in providing sufficient weight to displace the significance of the
Plaintiff’s claim acceptances.

(f)Paragraph 3 of Mr Riach’s affidavit indicated he had not personally
               reviewed the claim file for the purpose of swearing his affidavit. He
               relied on the hearsay comment of a Minter Ellison communication,
               together with comments found in selected medical reports, the
               accuracy of which is in dispute.

(g)Mr McDermott’s affidavit suffered from the same defects as Mr
Riach.

(h)At best it was not the position that either Gallagher Bassett or Allianz
               were not informed. It is just that they chose to ignore the
               headmaster’s note in the employer’s claim report. Further, there is no
               evidence to suggest that all the relevant facts were not properly
               considered at the time the plaintiff’s claim was accepted.

161.Accordingly, given the facts and circumstances of this matter, the Plaintiff submits that the Defendant’s acceptance of the claims ought to be properly accepted as an admission her injuries occurred in the course of her employment.
162.The Defendant contends that the affidavits of Mr Riach and Mr McDermott explain that the claims were accepted in error, based on an erroneous understanding of how the incident on 24 March 2017 occurred and, more specifically, whether the incident was within the course of the plaintiff’s employment.
163.The Defendant relied upon Sednaoui to address any purported admission.
164.Furthermore, as opposed to the situation in Sednaoui, the Defendant states that they did provide evidence from Gallagher Bassett and Allianz, by way of affidavits, explaining the reasons for the acceptance of the claims. As in Sednaoui, the Defendant also led evidence from lay witnesses regarding the circumstances of the incident itself.

COURSE OF EMPLOYMENT

165.Cases setting out the general principles in relation to the concept of “in the course of employment” include:

(a) Henderson v. The Commissioner of Railways (Western Australia)

(1937) 58 CLR 281 at 294.
(b)Humphrey Earl Limited v. Speechley (1951) 84 CLR 126 at 133 and 134.
(c)Park v. Peach (1967) VR 558 at 565.

166.The traditional approach is exemplified by Henderson at 294:
“Cases of this description are never easy. ... To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. ... Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties.”

167.Similarly, in Speechley at 133:
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. This service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties.”

168.The word “actual” has been omitted prior to the word “duties” in Speechley compared to Henderson.
169.However, the Henderson/ Speechley principle carries with it the notion of a “limit” on the liability of the employer. For example, in Speechley at 134, the Court stated:

“The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties. This cannot be stretched to make everything he chooses to do during the interval he takes for lunch incidental to his employment. If he so far deviates from what is reasonably incident to the execution of his duties as to proceed on a purpose of his own not fairly resulting from the nature of incidence of his employment, that purpose cannot be considered in the course of employment. There is a great difference between, on one hand, the worker’s taking advantage of an allowable interval for lunch in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his reasonable wants. Such questions must involve matters of degree ....”

170.The limitation was recognised by the Full Court of the Supreme Court of Victoria in Park at 565:

“In every case it is a question of fact whether the activity in which the worker is engaged at the relevant time was sufficiently connected with his employment as to warrant the conclusion that he was in the course of his employment. The remoteness or otherwise of the activity from his employment becomes a matter of degree.”

171.The Court of Appeal in VWA v Michaels ([2009] VSCA 261(unreported, Supreme Court of Victoria, Court of Appeal, 17 November 2009 [12-16]) considered the situation of a lecturer who suffered injury while examining textbooks in a bookshop some days prior to starting an employment contract and stated at [16]:
“Although it is very much encrusted with decades of judicial exposition, it must be to the words of the statute that we turn when considering a novel situation. We accept that, in general, the greater the interval between the injury and the commencement of work, the greater the employee’s difficulty in demonstrating the required relationship. But this is an essentially factual issue which must be considered in all the circumstances. These circumstances will include the nature of the employment and the activity undertaken at the time of the injury and its relationship to the work which the employee was engaged to perform. What must be shown is that the injury was suffered in the course of activities done as part of the work which the employee was engaged to perform.”

172.Earlier, the Full Court in Fitzgerald v Ainsby Rubber Co [1987] VR 437 at 440 -442 (involving a worker who had finished his shift but was keeping another worker company and suffered injury at the workplace) stated (at 440):
“In my opinion, the question of whether a worker is working in the course of employment involves a consideration of matters such as where and when the work is being done and the nature and purpose of the work.”

173.Similarly (at 441), the Court stated:
“In every case it is a question of fact whether the activity in which the worker is engaged at the relevant time was sufficiently connected with his employment as to why at the conclusion that he was in the course of his employment. The remoteness or otherwise of the activity from his employment becomes a matter of degree.”

174.In Reed Stockfeeds Pty Ltd v Lindhe [2008] VSC304 (unreported Supreme Court of Victoria, Justice Kyrou, 15 August 2008 at [15-19]), Justice Kyrou noted at [17]:
“Many cases have applied the Henderson principle, with some retaining the word ‘actual’ and others omitting it. Although not all of the cases have used the same language as Dixon J in Henderson and Speechley, they have all required that there be a nexus (which has sometimes been very slight indeed) between the relevant activity and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service. The outcomes of the cases have varied and have largely turned on their own facts. A trend, however, can be discerned towards the adoption of a more liberal approach to whether something is ‘in the course of’ employment. It is only possible to reconcile the application of the Henderson principle with decisions in many modern cases by a strained interpretation of the words ‘in order to carry out his actual duties’.”

175.Lonie v Gryph Investments Pty Ltd (unreported Magistrates’ Court of Victoria, Magistrate Wright, 15 June 2015 at [56] to [63] and [69] to [71]) has a similarity to the present case (depending on what facts the Court finds) but, as Magistrate Wright observed at [56]:
“Of course, there is a danger in closely comparing fact situations in previous decisions to the relevant factual situation being considered in any one case. All of the above cases were decided applying the relative principles.”

176.The essential enquiry remains whether, at the time of the incident, there was the relevant nexus: “…between the relevant activity and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service.” [requoting Justice Kyrou in Lindhe].

CONCLUSION

177.The Defendant has stated that the initial claim for compensation and the later impairment benefits claim were accepted in error. They have raised the issue of whether the incident was “in the course of employment” in these proceedings.
178.With respect to the Plaintiff’s submissions concerning the acceptance of the workcover claims, and the effect of these admissions, I do not accept that it was necessary for the Defendant to issue a further notice seeking to terminate the Plaintiff’s entitlement to weekly payments of compensation on these grounds. Pursuant to s. 264 of the Workcover Injury & Compensation Act 2013 the Court has ‘…exclusive jurisdiction to inquire into, hear and determine any question or matter…’.
179.In Vassallo v Intermotor Sales [2017] VMC 16, Magistrate Wright at [146] said:
“…s.264(2) must be given some meaning. It allows the parties, more particularly the VWA to have a court deal with issues that may not be the subject of comsideration in isolation, for example because of the lack of a formal notice by the VWA. Provided there is appropriate notification, it allows the parties to argue and the court to consider ‘any matter…relating to any termination or alteration of any entitlement to weekly payments’’.

180.Mr Simon has given evidence that he had been aware of the issue of whether the incident was in the course of employment for some time prior to 24 October 2019 when the matter was first listed. It is arguable that he should have been aware of the issue when the notice of Defence was filed on 15 April 2019 (paragraph 13(d)).
181.I believe appropriate notification has been given in this case.

182.I do not accept that it was incumbant on the Defendant, as a matter of procedural fairness or natural justice, to seek the Plaintiff’s comments as to whether the incident occurred during the course of employment prior to the issuing of this proceeding.
183.In any event, the proceeding was issued by the Plaintiff following the rejection of the Plaintiff’s request for reinstatement of weekly payments and medical and like expenses, including the request for right knee surgery. As stated, appropriate notification has since been given by the Defendant. The Plaintiff has been given the opportunity to give evidence and call witnesses on her behalf in this proceeding.
184.The Defendant has provided evidence which it says explains why the initial acceptance of the original claim for compensation, and the subsequent acceptance of the impairment benefits claim, was in error.
185.I do not consider that the Defendant’s Workcover Agents’ acceptance of the claims ought to be properly considered as an admission her injuries occurred in the course of her employment. That is an issue for this Court to determine based on the evidence.
186.All witnesses in this proceeding have had issues with recollecting what took place on 24 March 2017.
187.The Plaintiff gave evidence that she normally finished work at 2.30pm. A “Daily Timetable” document was relied on by the plaintiff as support for this proposition. The timetable was prepared as a guide with respect to the daily work to be done in the canteen. Whilst there was a time allocated for the doing of tasks, these times did not appear to be set in stone. What the timetable does show is that there was a list of work to be completed by canteen staff before the hand over to the after-care programme.
188.On the plaintiff’s own evidence, she occasionally worked beyond 2.30pm. She said that this was particularly so on a Friday and she would often go over time when the after-school care personnel were coming in to set up.
189.Varying accounts of the time that the plaintiff left the canteen on 24 March 2017 prior to the incident are before the Court.
190.In her evidence-in-chief, the plaintiff said that she finished in the canteen at about 2.45pm and left to go her car about 2.50pm.
191.Dr Bloom reported that the plaintiff said that she had completed her work that day by about 3.00pm.
192.Sharon Veale gave evidence that her staff would set up at 3.00 pm on a Friday and that she saw the Plaintiff leave after 3.00 pm on the day of the incident. Ms Veale also gave evidence that the Plaintiff said goodbye on her way out. The Plaintiff disputed this conversation with Ms Veale.
193.When seen by CoWork, the Plaintiff said that she had finished her work by 2.30pm or 3.00pm.
194.The evidence was that the school bell rang at 3.30 pm and that is when students were let out of school. The Plaintiff said her practice after she finished work was, depending on the available time, to go home and come back to collect her daughter at 3.30pm or, if there was less time, just park in a nearby Court and wait for her or wait in the staff room until it was time to collect her.
195.Chloe was 12 years old at the time at the time of the incident, nearly three years ago. All she could really say on the matter was that she was called to the office a couple of minutes before the school bell rang. Based on the Plaintiff’s concession that she may have been mistaken about Ms Yorke helping her from Mr Crozier’s office, Chloe would appear to be similarly mistaken. Given her age at the time and her relationship to the Plaintiff, I am not greatly assisted by her evidence.
196.Given the varying accounts, I consider the contemporaneous documents in this matter to be of extreme importance in determining when the incident occurred. The documents are not subject to the problems of recollection that many of the witnesses have had in this case. In my opinion, the contemporaneous documents are a more accurate reflection as to when the incident occurred.
197.The Plaintiff was directly involved in assisting Mr Crozier in completing the Incident Summary Report on the day of the incident. The Plaintiff said that Mr Crozier did not ask her what time the incident happened. I do not accept the Plaintiff’s evidence in this respect. I accept the evidence of Mr Crozier that he did ask the Plaintiff what time the incident occurred.
198.Mr Crozier logged on to complete the report at 3.56 pm. The incident report described the time of the incident as 3.20 pm. Mr Crozier was certain about the time and said that was the time that the plaintiff told him. The Plaintiff’s evidence was that she told Mr Crozier that the incident happened at 2.50pm. If this was what she said, there was no reason for Mr Crozier to not record 2.50pm as the time of the incident. The plaintiff’s evidence on this issue gave no satisfactory explanation as to why Mr Crozier did not properly record 3.20pm as the time of the incident based on what the Plaintiff told him. When otherwise asked specific questions about what she told Mr Crozier, the Plaintiff said she could not recall what she said to Mr Crozier.
199.I accept Mr Crozier’s evidence that he completed the report with the Plaintiff by asking her questions and asking her to check the answers at the time. The Plaintiff in her evidence agreed she had answered Mr Crozier’s questions and said she was there until just before 4.00pm. Mr Crozier gave evidence that he would not have completed the report with the plaintiff if he had thought that she was not able to properly answer his questions. Mr Crozier was adamant about that aspect.
200.The Plaintiff completed the initial claim for compensation form herself. She entered the time of the incident as 3.15 pm. When questioned about this, she said that she thought this was the time she was in the sickbay. This response is difficult to understand. The question in the claim for compensation form is clear: ‘What was the date and time the injury/condition occurred?’ Nothing in the questions suggests that any other time than the time of the incident should be given. The Plaintiff also agreed that at the time of completing the form she knew it was an important document and that there was no problem with her reading or writing English or understanding the document.
201.The Plaintiff agreed that she signed the claim for impairment benefits form dated 16 July 2018, which also listed the time of the incident as 3.15 pm. While the document was completed by Mr Simon, who gave evidence that he copied the time from the previous claim form, the Plaintiff again agreed that she was giving instructions to Mr Simon when the impairment claim was being completed. The Plaintiff did not seek to correct Mr Simon in relation to the time of the incident before signing it. She also agreed that she understood it to be a serious document.
202.The Plaintiff’s evidence that the incident happened at about 2.50pm is inconsistent with the evidence of Ms Veale, the Incident Summary Report, the initial claim for compensation, the impairment benefits claim form and the varying histories to doctors.
203.I also have reservations about the Plaintiff’s recollection of what happened on 24 March 2017. At various stages in her evidence she said that she was distressed after the incident and this had affected her recollection. The plaintiff did not clearly recall being assisted by Ms McPherson after the incident and did not recall being assisted by Ms McPherson into the canteen. The plaintiff also acknowledged that she was mistaken about Ms Yorke assisting her to walk from Mr Crozier’s office to the canteen.
204.Overall, my analysis of the evidence in this case is to that the incident occurred at about 3.15pm or 3.20pm. Those times are consistent with the contemporaneous Incident Summary Report and the initial claim for compensation form. The times are also consistent with the Plaintiff being in Mr Crozier’s office when he logged on his computer to complete the Incident Summary Report at 3.56pm.
205.I now turn to the issue of whether the Plaintiff was heading back to the canteen to lock up the cupboards and fridge at the time of the incident.
206.The plaintiff contends that, on the evidence before the Court, at the time of the incident, there was sufficient nexus between the plaintiff placing the items in her car and returning to the canteen to collect her handbag and lock up the cupboards and fridge and her employment.
207.Dr Kennedy provided the following history: ‘…heading back to the canteen area to pick up her daughter at end of school. Whist she was walking across the car park her right foot caught in a large crack in the bitumen and she fell heavily….’ (report dated 21 November 2018).
208.The handwritten notes of Dr Kennedy were tendered [Exhibit 4]. The notes are consistent with the history detailed in the report.
209.There is nothing to suggest that Dr Kennedy obtained this history from any source other than the Plaintiff.
210.In cross-examination, the Plaintiff agreed that Dr Kennedy’s report was correct in relation to other matters of detail before and after the incident. However, she maintained that the report was incorrect insofar as it referred to intending to collect her daughter. The Plaintiff could not explain why Dr Kennedy was not given a history of her going back to lock up the cupboards and fridge in the canteen. She did say that she may not have told him.
211.Dr Bloom provided a similar history: ‘…she had completed her work that day by about 3.00pm, and then, before picking her daughter up from the same school, placed her handbag and some other things including a box of jelly powder and plastic cups into her car that was situated in the car park…She headed back to the school area where she was to meet her daughter somewhere outside the canteen area. It was whilst crossing the car park from her car to where she was to meet her daughter that her left foot tripped in a badly maintained area of the car park causing her to fall…’ (report dated 12 May 2019).
212.The handwritten notes of Dr Bloom were tendered and refer to the Plaintiff heading back to pick up her daughter.
213.The Plaintiff and her husband, Mr Kourtis, questioned the notes of Dr Bloom. Mr Kourtis’s criticism of the notes was only with respect to peripheral detail and he did not suggest that the notes were incorrect in any relevant aspect.
214.Again, the Plaintiff confirmed that Dr Bloom’s report was correct in relation to his recording of matters before and after the incident but maintained that it was incorrect insofar as it related to her daughter. The Plaintiff could not explain why Dr Bloom did not record that she was heading back to lock up the cupboards and fridge in the canteen. The Plaintiff did not suggest that she told Dr Bloom that she was doing so.
215.The Plaintiff and her husband gave evidence that Dr Bloom’s history and his notes were compromised by not having a letter of instruction or other material at the time he commenced the interview.
216.Dr Bloom clearly did not have a letter of instruction or other material at the commencement of the interview with the Plaintiff.
217.However, I cannot see how the lack of a letter of instruction or other material impacted on Dr Bloom’s ability to interview the plaintiff and take notes as to the circumstances of the incident.
218.If anything, it may well be that Dr Bloom took a more detailed history in the absence of such information. Despite the concerns of the Plaintiff and her husband, there is nothing to suggest that the history obtained by Dr Bloom was not the history provided to him by the Plaintiff.
219.In addition to the above, the CoWork report 20 September 2019 (at page 8), the email of Ms Clarke dated 26 February 2020 and the accompanying handwritten notes of Ms Clarke and Ms Trembath (at page 7 of the CoWork report attached to the email) record that the Plaintiff said that she was going to meet her daughter at the time of the incident.

220.Again, the Plaintiff agreed that the contents of the CoWork report were correct in relation to matters before and after the incident but that it was incorrect insofar as it related to her daughter. The plaintiff could not explain why the CoWork report did not record that she was intending to lock up the cupboards and fridge in the canteen. Contrary to when she saw Dr Kennedy, on this occasion the Plaintiff thought that she did tell them.
221.In cross-examination, the Plaintiff agreed that the Incident Summary Report dated 24 March 2017 and the claim for compensation form dated 31 March 2017 did not say anything about her intending to go back and lock up the cupboards and fridge in the canteen. With respect to the claim for compensation form dated 31 March 2017, the Plaintiff said that the description of the task that she was performing when she was injured: ‘Taking belongings to car walking back to canteen’, should have said that she was also intending to lock up the canteen.
222.Overall, I am of the view that the histories recorded by by Dr Kennedy, Dr Bloom and CoWork are correct and accurately represent what Ms Kourtis told them at the time.
223.Ms Veale said that the padlock on the fridge was readily visible (being near the entrance to the kitchen area shared by the canteen and after-care staff as indicated in the drawing of the after-care area and canteen by Ms Veale) and that she did not see it unlocked on this occasion. On previous occasions (when the canteen staff had left) Ms Veale said that she had observed it unlocked and had locked it on such occasions.
224.In my opinion, on the evidence before the Court, the Plaintiff had finished work for the day and had locked the cupboards and fridge in the canteen area prior to the incident.
225.Whilst the Defendant has conceded, for the assistance of the Court, that heading back to lock up the canteen would be 'in the course of employment', the Defendant contends that the incident occurred, not when the Plaintiff was heading back to the canteen to lock the cupboards and fridge (in her role as canteen manager), but rather, when she was heading to collect her daughter from school in the same way as any other parent collecting her daughter from school.
226.Based on my view of the evidence, I accept the Defendant’s submission. The incident was not “within the course of employment”, as there was no relevant connection between that activity “…and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service.” (requoting Justice Kyrou in Lindhe)
227.The Plaintiff has also stated that she was going back to the canteen to collect her handbag before the incident. Her evidence was that she had left her handbag in the canteen area when dropping off the muffin mix and jelly to her car and that she was heading back to the canteen area to collect her handbag.
228.The Plaintiff has given inconsistent accounts as to whether she had taken her handbag to the car before the incident.
229.Dr Kennedy took a history that the Plaintiff “…was taking some objects, as well as her bag, to her car…”

230.Dr Bloom recorded the Plaintiff placed her handbag in the car and returned only with her car keys.
231.The personal assistant/secretary, Ms Trembath at CoWork, also recorded the Plaintiff had left her handbag in the car. (see Ms Trembath’s typed notes at page 7 of the Cowork report attached to the email from Ms Clarke dated 26 February 2020).
232.Ms Veale gave evidence the Plaintiff was carrying her handbag when she said goodbye to her shortly after 3.00 pm, as well as carrying another green Woolworths type bag. She did not see the handbag again.
233.I am satisfied that the Plaintiff did take her handbag to the car prior to the incident.
234.However, even if it was that the Plaintiff was heading back to the canteen to collect her handbag (and, as the Defendant contends, not also to lock the canteen fridge and cupboards), this would also not be ‘in the course of employment’ as there was no relevant connection between that activity “…and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service.” [requoting Justice Kyrou in Lindhe].

235.Whilst the facts of every case are different, I refer to the decision of Aloi v VWA [2013] VMC 31 where Magistrate Wright found a worker who was collecting his wallet was not “in the course of his employment”.
236.I finally refer to the alternative submission on behalf of the Plaintiff that she had not completed her administrative duties which included providing administrative reports and cooking product for sale at the canteen from home.
237.As I see it, the Plaintiff’s alternative submission is that, even if she was collecting her daughter, she was doing so as part of an overall “journey” from the school to her home for the purposes of carrying out administrative work at home on that Friday night and also making muffins and jelly cups over the weekend to sell through the canteen the following week.
238.The “journey provisions” of the Accident Compensation Act 1985 were abolished by amendment as at 1 December 1992 and there has been no equivalent provision in the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013 to reinstate such provisions.
239.There is little point in going over the various cases referred to by counsel in their submissions with respect to this issue. Depending on the facts, there is still an argument for the Plaintiff to obtain workers compensation benefits.
240.In this case, the Plaintiff’s evidence is vague as to any administrative work to be carried out at home on that Friday night. The Plaintiff made the comment that she was intending to create some sort of spreadsheet as to how much had been made by the canteen, put it on the computer at home and in an Excel spreadsheet and then send it back to the school. There was no suggestion that the computer that she used at home was supplied by the school or, that she had carried, or was carrying, any computer (such as a laptop) or papers or other documentation for the purposes of preparing a spreadsheet at the time of the incident.
241.The Plaintiff’s suggestion that she may have been going to do administrative work at home is not supported by the evidence and appears to be an afterthought.
242.In my opinion, there is no basis to conclude that the Plaintiff was going to perform some administrative work at home on the Friday night.
243.In relation to the carrying of cooking materials to her car, the Plaintiff had completed that activity prior to the incident.

244.The finding of the Court is that the Plaintiff was engaged in the activity of going to collect her daughter from school at the time of the incident.

245.The Plaintiff has finally submitted that the onus is on the Defendant to disprove that the incident did not occur during the course of her employment.

246.The Defendant disagrees and says that the Plaintiff has the onus regarding the threshold issue of any original entitlement to compensation under the Workplace Injury Rehabilitation & Compensation Act 2013.
247.In Castillo v VWA (CC (Vic), 24 August 1995, unreported), Williams J, allowed the question of original entitlement as to liability to be considered, whether or not such entitlement was originally admitted or deemed to have been admitted.
248.In Jackson v Caulfield City Council (CC (Vic), 28 June 1996, unreported), Higgins J, held that the worker had the burden of proof in such applications.
249.Even if the Court considered that the Defendant had the legal and/or evidentiary onus in relation to the threshold issue of whether the incident occurred in the course of employment, the Court considers that such onus has been discharged for the above reasons.
250.The proceeding will be dismissed.
251.I invite the parties to provide the appropriate orders to the Court.

[2020] VMC 10

5 May 2020