Local Government Association (City of Salisbury) v Gregory Roy May No. SCGRG 96/821 Judgment No. 5901 Number of Pages 5 Workers' Compensation (1996) 67 Sasr 353
[1996] SASC 5901
•11 December 1996
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX, MATHESON AND DUGGAN JJ
CWDS
Workers' compensation - for what injuries compensation payable - worker injured whilst on his way back to work after playing `backyard cricket' with workmates during lunch hour - consideration as to whether compensation not payable by reason of Workers' Compensation Act s30(4) which provides that a disability does not arise from employment if it arises out of, or in the course of, the worker's involvement in a social or sporting activity other than an activity undertaken at the request of the employer. Held that the game was a sporting activity for the purposes of s30(4) but that the disability did not arise out of, or in the course of, the activity. The Commonwealth v Oliver (1962) 107 CLR
353 at 355; Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473 at 487; Goward v The Commonwealth (1957) 97 CLR 355 at 364, discussed.
HRNG ADELAIDE, 5 November 1996 (hearing), 11 December 1996 (decision) #DATE 11:12:1996 #ADD 28:1:1997 Counsel for appellant: Mr R Bonig Solicitors for appellant: Fountain &; Bonig Counsel for respondent: Mr P J Humphries Solicitors for respondent: Reilly Basheer Downs &; Humphries
ORDER
Appeal dismissed.
JUDGE1 DUGGAN J
1. The respondent, a construction worker employed by the Salisbury Council, injured his ankle during a lunch break from work. The injury occurred when he lost his footing as he was walking across a yard which is part of an amenities facility provided by the Council for its workers. The respondent had been taking part in a game of "back yard cricket" with other employees and he was on his way back to work when injured.
2. The appellant, an exempt employer, rejected the respondent's claim for compensation on the ground that the claimed disability arose out of the worker's involvement in a social or sporting activity which was not part of his employment or undertaken at the direction or request of the employer. (Workers Rehabilitation and Compensation Act 1986 s30(4)). This determination was confirmed by a review officer. However an appeal to the Workers Compensation Appeal Tribunal was upheld, the learned deputy president being of the view that the game was not a social or sporting activity and that, in any event, the disability did not arise out of, or in the course of, the game which the deputy president found had been completed before the occurrence of the incident which gave rise to the injury. The appellant has appealed against this decision.
3. Before dealing with the arguments advanced on appeal it is convenient to set out the relevant parts of s30.
"30. (1) Subject to this Act, a disability is compensable if it
arises from employment.
(2) Subject to this section, a disability arises from employment if
-
(a) in the case of a disability that is not a secondary disability
or a disease - it arises out of or in the course of employment; or
(b) in the case of a disability that is a secondary disability or a
disease -
(i) the disability arises out of employment; or
(ii) the disability arises in the course of employment and the
employment contributed to the disability.
(3) A worker's employment includes -
(a) attendance at the worker's place of employment on a working day
but before the day's work begins in order to prepare, or be ready,
for work; and
(b) attendance at the worker's place of employment during an
authorised break from work; and
(c) attendance at the worker's place of employment but after work
ends for the day while the worker is preparing to leave, or in the
process of leaving, the place; and
(d) attendance at an educational institution under the terms of an
apprenticeship or other legal obligation, or at the employer's
request or with the employer's approval; and
(e) attendance at a place to receive a medical service to obtain a
medical report or certificate (or to be examined for the purpose),
to participate in a rehabilitation program, or to apply for, or
receive, compensation for a compensable disability.
(4) However, a disability does not arise from employment if it
arises out of, or in the course of, the worker's involvement in a
social or sporting activity, except where the activity forms part of
the worker's employment or is undertaken at the direction or request
of the employer."
4. In the following passage, in his reasons for decision, the learned deputy president dealt with the nature of the activity in which the appellant had been involved:
"The 'back yard cricket' is not a 'sporting activity'. Counsel for
the Respondent submitted that any activity involving implements
generally used in a sport was a 'sporting activity' e.g. solo
hitting a tennis ball against a wall was a 'sporting activity'
because the implements of a tennis racket and a ball are used.In my
view this is far too wide a construction to be adopted. Back yard
cricket (in the multitude of forms in which it exists) is not
properly described as 'cricket' at all, nor is it described as a
sport. It is a relaxation or a recreation. The term 'cricket' can
only be applied by analogy to an activity that has three or four
players aside, and is played not on a wicket but on a dirt strip in
a back yard with a tennis ball. (sic)Back yard cricket is not a
social activity that is caught by the Act. If it were, any activity
indulged in by more than one person e.g. sitting at the lunch table
and talking, is on one view 'a social activity - and if a chair
collapses then the worker is not covered for compensation. To adopt
the breadth of the definition contended for by Counsel for the
Respondent all but Carthusian monks are excluded.ÉIn my view the
activity engaged in by the Appellant was neither a sporting nor a
social activity - as excluded by the Act. Something more structured
and formal than 'back yard cricket' is contemplated, otherwise
practically all forms of physical and recreational activity as well
as all forms of social intercourse would be caught."
5. According to the evidence, it was the practice of some of the employees to play the game in the small yard. They used makeshift wickets, an old cricket bat and a tennis ball. There was no running between wickets and the only way to score was to hit the ball to one of the fences.
6. There is no doubt in my mind that the game was a "sporting activity" within s30(4). I think these words must be given their ordinary meaning and it is sufficient to refer to the following definition which is given in The Oxford English Dictionary as one of the meanings of "sport" - "To amuse, entertain or recreate oneself, especially by active exercise in the open air; to take part in some game or play É"
7. The learned deputy president's insistence on the requirement of a more structured and formal activity was misplaced in that such a construction unduly narrows the ordinary meaning of a phrase, the wide import of which is not restricted by the apparent policy of the sub- section.
8. At the hearing before this court Mr Humphries, for the respondent, conceded that the game played by the respondent was "a social activity" within the meaning of the section. It might be said that this phrase is wider than "sporting activity" but I am of the view that the latter phrase more appropriately describes the activity in which the respondent was involved.
9. The next question for consideration is whether it can be said that the disability "arises out of, or in the course of" the worker's involvement in the activity. Some further reference to the undisputed facts is necessary in order to deal with this aspect of the matter.
10. On the day on which he was injured the respondent was helping to clean up parks and reserves controlled by the appellant council. As the lunch hour approached he and other workers were conveyed by truck to the amenities block which housed a lunch room. After eating his lunch he went outside to the yard where the cricket game was in progress. He fielded for a time, bowled and then batted. There is a buzzer which sounds at the conclusion of the lunch period. It is difficult to hear from the yard because of its location on the other side of the amenities block. However, the respondent saw the other workers moving from the area and realised the buzzer had sounded. He then put the bat against the nearest fence, which is about a metre away from the stumps at the batsman's end, and started to walk back towards the amenities block. He slipped and fell to the ground after he had taken two or three paces towards the amenities block. It was at this point that he suffered the injury to his ankle. The learned deputy president found that the respondent was in the act of returning to work and that the disability did not "arise out of, or in the course of" the game of cricket.
11. There are many cases dealing with the interpretation of this phrase, which is commonly associated with the concept of employment in worker's compensation legislation. Earlier legislation contained a composite phrase requiring that the injury should arise both out of and in the course of employment. However, the subsequent use of the disjunctive expression focused attention on each of the component parts (The Commonwealth v Oliver (1962) 107 CLR 353 at 355) and "arising out of" was interpreted as implying a causal relationship, whereas "in the course of" was seen as connoting a temporal connection. (Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473 at 487.)
12. I do not think it is necessary, for the purposes of this case, to consider the long line of cases concerned with the interpretation of the phrase. As I have pointed out they interpret it in the context of employment which is a broader and far more complex concept than the activities presently under consideration. Nevertheless, the broad distinction between causal and temporal connection would seem to be equally appropriate to the interpretation of the phrase as it appears in s30(4) of the Act.
13. Mr Bonig, for the appellant, argued that the disability in the present case arose out of the respondent's participation in the game of cricket. According to counsel, the game was causative "because he would not have been where he was but for his decision to participate". There is a clear fallacy in this argument which is based on "but for" reasoning. The argument that such reasoning provides an appropriate test of causation for application to the facts of the present case must be rejected for the same reason identified in the joint judgment of Dixon CJ, Williams, Webb and Kitto JJ in Goward v The Commonwealth
(1957) 97 CLR 355 at 364:
"The contention is based on the conception which the often repeated
words of Lord Shaw in Thom v. Sinclair (1917) A.C. 127 describe -
'The expression' (arising out of the employment) 'in my opinion,
applies to the employment as such - to its nature, its conditions,
its obligations, and its incidents. If by reason of any of these
the workman is brought within the zone of special danger and so
injured or killed, it appears to me that the broad words of the
statute "arising out of the employment" apply' (1917) A.C., at p.
142.To this must be added the explanation given by Lord Haldane in
Upton v. Great Central Railway Co. (1924) A.C. 302, at pp. 306, 308
to the effect that it will suffice if the accident arises out of
circumstances the employee has had to encounter because it is within
the scope of his employment to do so.The question is one of cause,
but it is not enough to point to antecedent situations in the
absence of which there could not have been an accident of the
description involved. It is correct no doubt that if the camp had
not been near a railway and if the deceased had not been living in
the camp the accident would not have happened. But these are no
more than antecedent conditions which are preliminary to, but hardly
operative causes of, the accident."
14. In the present case the game of cricket had ended and the last action which might be said to relate directly to that activity was the placing of the bat against the fence. An injury which occurred while the respondent was walking to the amenities block could not be said to be caused by participation in the activity which had ceased.
15. It was not argued by the appellant that a sufficient temporal connection had been established so that it could be said that the injury arose "in the course of" the game.
16. In my view the injury is compensable and the appeal should be dismissed.
JUDGE2 COX J
17. In my opinion this appeal should be dismissed. I agree with the reasons of Duggan J.
JUDGE3 MATHESON J
18. I also agree that this appeal should be dismissed for the reasons given by Duggan J.
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