McKenzie and Comcare
[2011] AATA 924
•22 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2011/1137
) No 2011/4517
GENERAL ADMINISTRATIVE DIVISION ) Re LOUISE MCKENZIE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date 22 December 2011
Place Canberra
Decision The decision under review is affirmed .............................[sgd]...............................
Professor RM Creyke, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – liability for injury sustained in temporary car park designated for employees – whether in the course of employment – whether at place of work -– point at which ‘journey’ commences – common areas of building – level of control exercised by employer – whether temporarily absent from place of work at direction or request of employer – whether undertaking an activity associated with employment - application of Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth).
Acts Interpretation Act 1901 (Cth) s 15AB
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5A, 6, 14
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Comcare Australia (Defence) v Daniel Troy O’Dea (1997) 150 ALR 318
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Re Barnard and Australian Postal Corporation [2008] AATA 507
Re Connor and Australian Postal Corporation [2009] AATA 973
Re Green and Comcare [2011] AATA 639
Re Hughes and Comcare [2010] AATA 775
Re Miller and Australian Overseas Telecommunications Corporation [1992] AATA 196
Re Perera and Comcare [2009] AATA 499
REASONS FOR DECISION
22 December 2011 Professor RM Creyke, Senior Member
1.Ms Louise McKenzie injured her right foot on 12 July 2010 while walking to her car on her way home from work. The car was parked in a temporary designated parking area for hospital staff, which is where the injury occurred. Ms McKenzie was employed by The Canberra Hospital (the Hospital), which is in the portfolio of the ACT Department of Health, Housing and Disability Services (Agency).
2.On 19 July 2010 Ms McKenzie lodged a workers’ compensation claim for an injury to her foot. The claim was rejected in a decision of 23 August 2010, a decision upheld on review on 6 January 2011. On 25 March 2011, Ms McKenzie sought further review by the Tribunal. That is claim number 2011/1137.
3.Ms McKenzie also made a claim that a ‘secondary’ condition of ‘embolism and thrombosis of unspecified vein’, arose as a consequence of the initial foot injury. That is claim number 2011/4517. On 26 July 2011, Comcare rejected the claim, and this decision was upheld on review on 19 October 2011. On 21 October 2011, Ms McKenzie appealed to the Tribunal. Both matters were heard together.
Background
4.Ms McKenzie was born in 1967. She was employed at the Hospital as a registered nurse. The Hospital provided parking for staff, including Ms McKenzie, in a number of designated staff or hospital car parks.
5.From 9 July 2010 until early in 2011, as a temporary measure, hospital employees were given a number of alternative parking options while a new multi-storey car park on the Hospital campus was being built. Use of these alternative car parks was not compulsory. Parking in an adjacent car park on the grounds of the Canberra Institute of Technology (CIT) was one of those options. The car park was across a busy public street, Yamba Drive, away from the Hospital campus, and about 500m from the entrance to the Hospital.
6.On 12 July 2010, Ms McKenzie had started work at 7.00am and her shift concluded at 3.30pm. Her car was parked at the CIT car park in an area signposted as being designated for hospital staff. There was a footpath to the car park but Ms McKenzie was not using it on this occasion.
7.At approximately 3.35pm on 12 July 2010, while returning to her car, she went to the aid of a colleague who had fallen over in front of her. In doing so, she stepped over a curb at the edge of the car park and fell. She attended the Emergency Department of the Hospital where an X-ray of her foot was taken.
8.On 23 July 2010, Ms McKenzie again presented to the Hospital for review. She was advised that she had suffered fractures of base of fifth metatarsal on her right foot; and an embolism and two, four centimetre thromboses in the soleal veins. She was provided with a back slab, crutches and referred to the fracture clinic.
9.On 13 July 2010, Ms Kellie Noffke, Assistant Director of Nursing, who had been notified of the injury to Ms McKenzie, emailed Mr Rob Swain, Safe Work Australia, for advice concerning Ms McKenzie’s injury and possible return to work. She stated in her email: ‘I have notified Brad (car parking) and he is reviewing the car park in relation to safety issues and whether or not a barrier should be erected to prevent staff from taking this pathway’.
10.On 15 July 2010 Ms McKenzie lodged an incident report. The incident report noted that ‘IP&M had been contacted regarded the gutter at the CIT/Canberra hospital staff car park’. The report noted ‘The area has been fenced off. ADON [Assistant Director of Nursing] contacted’.
11.A journal entry by Mr Brad Stewart on 23 July 2010 which was included in the incident report noted: ‘The area in which the incident occurred in the CIT car park is a garden bed and not designed for pedestrian access. Area since fenced off to prevent pedestrian access. Pedestrian access is available in the immediate area <3m’. His entry also states: ‘CIT car park is designed and adheres to the Aust. Standards for off-street parking’.
12.On 19 July Ms McKenzie lodged a workers’ compensation claim. She described the accident as occurring when she was ‘Walking to my car in the CIT carpark’. She said at the time of the accident ‘Another staff member fell in front of me as we were walking to our cars and I fell going to her aid’. She explained that ‘I stepped off the curb without realising how high the curb actually was as I was more concerned about the injuries to my colleague’. Her explanation for what caused the injury was: ‘The unusual height of the curb’.
13.In a request to Comcare by Ms McKenzie, dated 17 September 2010, she noted that ‘It is only since the 12 July 2010 that this area [the area adjacent to the CIT car park in which her injury occurred] has been cordoned off potentially as a consequence of safety issues experienced on the 12 July’.
14.Upon initial examination, Ms McKenzie’s treating practitioner, Dr Charles Sleiman, certified that she was unfit for work for 7 days from 19 July 2010. In a medical certificate for Comcare workers’ compensation issued on 19 August 2010, Dr Sleiman diagnosed ‘right 5th metatarsal fracure (sic) (in CAM boot) + right soleal veins thrombosis (DVT)’. He found that Ms McKenzie had been unfit to work since 13 July 2010, and that her condition was to be reviewed on 4 September 2010.
15.On 6 September 2010, in a further certificate, Dr Sleiman certified Ms McKenzie as fit for modified duties from 7 September 2010. He continued to certify her as fit for only modified duties until 28 February 2011. He listed the injury as having been caused by ‘Fall in the car park of the Canberra Hospital’.
16.In a medical certificate for an ACT workers’ compensation claim, dated 26 July 2010, Dr Mansoor Ahmed, Department of Orthopaedics, certified that Ms McKenzie’s foot should not be load bearing for six weeks. He also noted that Ms McKenzie’s employment was not ‘a substantial contributing factor to the injury’. On 25 August 2010, Dr Ahmed certified that Ms McKenzie could now start weight bearing with physiotherapy.
Relevant Evidence
The Canberra Hospital newsletters regarding car parking arrangements
17.The Hospital published a series of newsletters concerning the temporary car parking options during the period of construction of the multi-storey car park. The CIT car park was owned and controlled by the ACT Government. Key extracts relating to the CIT car park follow.
18.The CIT car park was described as a ‘designated staff only parking area’. Access to the car park was only controlled by means of a gate, although ACT Health parking and security guards would conduct checks. TCH Parking Update No 4 noted that the CIT temporary car park ‘will be controlled by a “ranger gate” rather than a proximity card operated boom gate. A “ranger gate” is the type of gate you might see on a sports field that allows ambulances and grass mowing equipment to enter the field’. The newsletter stated: ‘The gate will be opened manually at 5.30am and padlocked closed at 8.30pm, Monday to Friday’. The closing time for the car park was later extended to 10pm. The gate was at the entrance to the car park.
19.The TCH Parking Update No 6, 10 December 2009 contained the following safety messages:
Staff crossing Yamba Drive are strongly urged to obey traffic signals and signage directing pedestrians to cross at the traffic lights. A large number of staff have been seen darting between traffic, jumping fences and crossing the road incorrectly putting themselves and drivers at risk. Please stay safe when walking to and from your car.
20.In response to the complaint: ‘I have witnessed non-TCH staff using our car parks. Can something be done to stop this?’, TCH Parking Update No 9, 19 March 2010, stated:
The issue of non-TCH people parking in staff and public car parks at TCH is an ongoing issue that ACT Health Parking Operations is aware of. It is monitored on a regular basis. A number of solutions are being investigated for the CIT car park including the possibility of stationing a security guard at the entrance to check staff ID before granting entry. Unfortunately because there was no electrical infrastructure in the location of the CIT car park before it was developed it would have been extremely expensive to install a boom gate system linked back to the TCH proximity card security system.
21.TCH Parking Update No 10, 1 April 2010, noted that Canberra Hospital Security guards are available to ‘... unlock car park gates for staff who have overstayed the car park closing time and have been locked in. … This can be arranged by contracting the Canberra Hospital security guards on 6244 2222’.
22.TCH Parking Update No 13 – On-street parking commences Mon 12 July, dated 5 July 2010, described the temporary parking arrangements during the renovations. The brochure noted that ‘from Monday 5 July 2010 the hours of operation of the CIT car park will be extended to 10.00pm. The car park will now be open from 5.30am to 10.00pm, Monday to Friday and will be more suitable to a broader range of staff’.
23.TCH Parking Update No 14 – The first week of changed parking, dated 16 July 2010, referred to ‘the hospital’s temporary car park on the grounds of the CIT’. The brochure included a section on ‘Where NOT to park’ and listed: ‘The CIT’s own car park used by students attending the CIT’. The entry then noted: ‘This car park is separate to the hospital’s car park on the CIT campus and should not be used by hospital staff’.
24.TCH Parking Update No 15, 23 July 2010 stated:
Access to the CIT car park – concerns have been raised about non-health staff using the car park at the CIT. To address this issue TCH Security Guards will now patrol the entrance to this car park and request drivers to present their hospital ID to gain access.
Mr Rodgers
25.Mr William Malcolm Rodgers, director Client Services, Security and Emergency, ACT Health between February 2007 and December 2010, was responsible at the time of Ms McKenzie’s injury for the operation of the various car parks associated with the Hospital. He provided an initial statement, dated 2 August 2011.
26.He noted approval for the construction of the CIT car park was given on 16 June 2009. On 21 July 2009, the CIT granted a licence to the ACT to occupy the car park. The Certificate of Title, dated 15 May 2006, showed that the ACT Government (ACT Health) had held the Crown lease over the land on which the temporary car park was situated from 22 March 2006.
27.Mr Rogers noted that to access the CIT car park from the Hospital, a person had to cross Yamba Drive, walk along a public footpath and cross Albermarle Place. He noted that the curb in question was on the boundary of the CIT temporary car park. He stated that there were signs indicating that this car park on the CIT campus was designated for ACT Health parking. However he said ‘no one controlled access to the car park. On some occasions in the mornings, security guards would check the identification badges of persons parking in the car park’.
28.In his statement, he wrote:
Security guards from ACT Health patrolled the car park by doing a “drive through” once or twice a day. There was, however, no detailed inspection of the car park. The security guards were present to provide assistance; for example, checking to see whether car windows were closed. The security guards did not have the authority to control pedestrian or vehicular access to the CIT car park. There were no boom gates or fences in place.
29.He also noted: ‘The area in which Ms McKenzie injured herself was not designed for pedestrian access. There were footpaths within the immediate area’. In addition he said: ‘Following Ms McKenzie’s fall, the area in which she injured herself was cordoned off by Injury Prevention and Management ACT Health, who added the cordon’.
30.His supplementary statement, dated 4 November 2011, pointed out that the Hospital defines its ‘premises’ as being ‘all of its permanent buildings’. The description did not include, among others ‘any car parks or other areas in the vicinity of the Hospital’. Nor did it include leased areas within the hospital buildings such as privately run ‘cafes and hairdressers’.
31.In his view, the hospital ‘premises’ did not and never had included the CIT car park. He also referred to other forms of transport available for hospital staff, including ‘car pooling walking and cycling to work’. He noted a program of the hospital called ‘Take 30’ which recommended staff spend 30 minutes a day doing some form of exercise, including walking and cycling to work.
32.He said ‘Hospital staff (such as Ms McKenzie) did not have reserved car parks, but had designated areas in which they could park. Those car parks operated on a ‘“first come, first served” basis’. Nor were there any duress point alarms in the car park as there were in the hospital patients and staff to use in case of an emergency.
33.He said the entry to the CIT car park did have a lockable gate but it was always open on week days and anyone could walk through or drive into the car park during that time. He said that ‘As part of the construction of the car park, a pathway was built (in area near where Ms McKenzie fell) to enable safe pedestrian access into the car park’.
Ms Duggan
34.Ms Tracey Duggan, Registered Nurse level 3.2, Ward 6A and Ms McKenzie’s supervisor as at 12 July 2010, provided a statement dated 28 October 2011. As a nurse manager, Ms Duggan was responsible for the overall management of her ward. Ms McKenzie was a Registered Nurse Level 1. Ms Duggan outlined the duties which would have been performed by Ms McKenzie. She said that to the best of her knowledge, Ms McKenzie was not allocated duties outside the Hospital campus on 12 July 2010, nor was she required to perform any of the listed duties in the CIT car park.
Other matters
35.The ‘Special Conditions’ of the licence to ACT Health for use of the CIT car park provided that the ‘Territory [ACT Health] will bear the costs of designing and constructing the carpark and infrastructure. CIT, may, but is not required to, contribute funding to the design and construction costs’. In addition the licence provided:
The Territory must install a meter to measure the Territory’s electricity use on the Land so that the Territory is directly accountable to the relevant authority for payment for electricity the Territory consumes on the Land.
36.The Notice of Decision dated June 2009 by the ACT Planning Minister for construction of a temporary car park noted that as ‘Staff walking from the proposed carpark will be inclined to jay walk across Yamba Drive as the signalised pedestrian crossing is not in direct line to the main hospital building,’ that:
‘A condition has been imposed on DA 200914387 (for the temporary carpark on Yamba Drive) for a fence to be erected between the temporary carpark beside Yamba Drive and the road to discourage pedestrians from attempting to cross Yamba Drive other than at the lights’.
Legislation
37.The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 provides for payment of compensation for a work-related injury. The relevant provisions of the Act are:
6 Injury arising out of or in the course of employment
6(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this act, be treated as having so arisen if it was sustained:
a) as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or function of his or her employment; or
b) while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment; or
c) while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i) associated with the employee’s employment; or
(ii) at the direction or request of the Commonwealth or a licensee; or
d) while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment…
(1C) For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.
38.The relevant definitions are:
4 Interpretation
4(1) place of work in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
5A Definition of injury
(1) In this Act injury means … (b) an injury … suffered by an employee, that is a physical … injury arising out of, or in the course of, the employee’s employment’.
Issues
39.The issues are:
·What was the injury, or what were the injuries, sustained by Ms McKenzie in the fall on 12 July 2010?
·Did Ms McKenzie suffer an injury or injuries arising out of, or in the course of, her employment with the Agency?
·Is Comcare liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for that injury or those injuries?
40.In effect the central issue is whether Ms McKenzie’s injuries ‘arose out of, or in the course of … employment’. The answer to that question turns on whether her injuries arose at her ‘place of work’, or while she was temporarily absent from her place of work undertaking an activity associated with her employment or at the direction or request of her employer, or while she was travelling for the purpose of her employment at the direction or request of her employer.
Consideration
The injuries
41.The two decisions under review are a decision to reject the injury to Ms McKenzie’s fractured toe on the ground that it was not related to her employment; and a decision to reject conditions described as ‘embolism and thrombosis’ either as injuries in their own right, or as secondary injuries to Ms McKenzie’s fractured toe.
42.In the reviewable decision in relation to the second claim, the delegate stated that ‘it is Comcare’s policy to consider liability for these injuries as secondary conditions on the original injury claim’. As the delegate said, since liability had been denied for the fracture of the bone in the foot, it followed that there could be no liability for the conditions which were secondary to that fracture. Accordingly, liability for all injuries depends on whether the injuries can be related to Ms McKenzie’s employment.
43.Ms McKenzie contends that the expression ‘in the course of employment’ would capture injuries sustained where a worker was either on their employer’s premises, or traversing a place which the worker was permitted to go in order to access or leave the workplace, even if that area was not in the possession or control of their employer.
44.On the day of her initial injury, Ms McKenzie had parked in the car park under her usual terms of employment and was on her way to the car to commence her journey home. She contended that even though her shift had finished, and she had left the hospital building, the ‘period of work’ had not finished until she got into her car and started her return journey.
45.She also contended, in her request to Comcare for reconsideration of her claim, that ‘ACT Health directed that employees park at the adjacent CIT car park and this information was disseminated via numerous emails through the ACT Health network system. In these communications employees were directed to park at the CIT car park from the 12 July (refer to TCH Parking Updates No 13 and 14 – highlighted areas)’. Her claim that there had been a ‘direction’ to that effect was not pursued.
46.Ms McKenzie also noted that ‘The CIT car park is signposted as official ACT Health Staff Parking Only – Hospital Staff Car park’ (see photos’ #4 and 5)’. Photographs taken 11 April 2011, confirm this assertion. The sign also states ‘Gate closed from 10.00pm’.
47.The reviewable decision accepted that the claimed injuries of embolism and thrombosis were sequelae of the original injury of ‘right 5th metatarsal fracture’. In the absence of evidence contradicting that claim, and in view of the Comcare policy that this is how the embolism and thrombosis should be regarded, the Tribunal is content to so find.
The course of employment
48.The specific issues are whether, at the point at which Ms McKenzie was injured, she was on a ‘journey’ after ceasing work,[1] or was at her ‘place of work’. A ‘place of work’ is defined in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) section 4(1), in relation to an employee, as including ‘any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment’. The two statutory concepts are mutually exclusive, although factually that is not necessarily the case.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) s 6(1)(d),(1A),(1B),(1C).
Journey
49.It is agreed that the changes to the Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) were intended to ‘remove claims for non work-related journeys and recess breaks where the employer has no control over the activities of the employee’.[2]
[2]Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) i, xiii.
50.The argument for Ms McKenzie was that she had not yet embarked on a journey home as she was on her way from the hospital premises to her car to commence that journey, having finished her shift for the day. Comcare did not agree with this contention. The issue is whether Ms McKenzie was, at that point, travelling between her usual place of work and her residence.[3] In other words, the Tribunal must identify the point at which her journey home commenced.
[3] SRC Act s 6(1C).
51.It is clear that there is no bright line between ‘place of work’ and the point at which a ‘journey’ commences. A person who leaves their desk in their workplace at the end of the working day to walk to their means of transport to get home, and who is injured before they leave the building which is the principal workplace, including in common areas open to the public or other tenants in the building, such as lifts, is not denied compensation.
52.This suggests that any test based solely on whether, at the time of their injury, the employee is engaged in an activity which could be covered by the duty statement for their position is not determinative. What it does require, however, is an analysis of the range of factors which have been identified in the case law as relevant to this question. In particular, it requires an examination of whether Ms McKenzie was in her ‘place of work’ at the time of the accident, and if so, what was the degree of control able to be exercised by her employer over that location. Factors identified in the cases have been whether the injury occurred:
·‘outside the building where there was unrestricted public access’;[4]
·outside the building in an area of exclusive use by its employees;[5]
·in ‘an area owned by or leased to the employer’;[6]
·in ‘the common areas of a building’;[7]
·in an area over which the employer has either legal or practical control.[8]
[4] Re Perera and Comcare [2009] AATA 499 at [15].
[5] Re Connor and Australian Postal Corporation [2009] AATA 973 at [13] – [14]; Re Hughes and Comcare [2010] AATA 775 at [39] – [40].
[6] Re Barnard and Australian Postal Corporation [2008] AATA 507 at [52].
[7] Ibid.
[8] Id at [53].See also Re Hughes and Comcare [2010] AATA 775 at [37].
Place of work
53.An ‘employee’s residence’ is defined to include all the parcel of land up to the external boundary.[9] That means, as section 6(1A) indicates, a ‘journey’ from work ends at the external boundary of an employee’s residence. No such assistance is provided in the Act in relation to the starting point of a ‘journey’ since ‘place of work’ is not similarly defined. That means that although it is relevant ‘to determine whether [an] injury was sustained in an area owned by or leased to the employer, the fact that an injury has not occurred in such an area is not … determinative of a finding that an injury did not occur at a “place of work”’.[10]
[9] SRC Act s 6(1B).
[10] Re Barnard and Australian Postal Corporation [2008] AATA 507 at [52].
54.Accordingly, no definitive assistance in identifying ‘place of work’ is provided by information as to the areas under the ownership, leasehold or licence of the employer. The issue of whether an injury occurred in a ‘place of work’ is a product of multiple factors.[11]
[11] Re Perera and Comcare [2009] AATA 499 at [13] – [15]; Comcare Australia (Defence) v Daniel Troy O’Dea (1997) 150 ALR 318.
55.One significant factor in deciding whether an area is a ‘place of work’ is the level of control over the area exercised by the employer.[12] Justification for this consideration is a matter of common-sense – an employer should not be held responsible for injuries to an employee in areas over which the employer has no occupational and health responsibilities – but is also reflected in the Explanatory Memorandum to the 2006 Bill, which amended the journey provisions of the Act. The Explanatory Memorandum, referring to the amendments to section 6(1C) and (2) of the Act stated:
[12] Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318 at 325-6.
These amendments to section 6 address a concern that employers are being held liable for injuries for the activities of their employees that are beyond their control. The amendments also seek to align liability for workers’ compensation with employer duties under the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) (the OHS Act). Under the OHS Act an employer has a duty of care and must take all reasonably practicable steps to protect the health and safety of workers at the workplace. This duty of care does not apply once an employee leaves the workplace to undertake his or her own private pursuits, eg to go shopping at lunch time’.[13]
[13] Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth), Sch 1.6.
56.Recourse to the Explanatory Memorandum is justified ‘to confirm that the meaning of the provision is the ordinary meaning’.[14] The passage quoted confirms that the failure to define the boundaries of the location of ‘place of work’ was intentional, leaving open the multi-factorial approach adopted in the case law. Accordingly, it is legitimate to refer to the factors identified in the cases, including the degree of employer control of an area, as an indicator of whether an injury occurred in a ‘place of work’.[15] It is conceded that each case turns on its own facts.[16] However, unless the injury occurs in an ‘overall interval of work’,[17] which is not the case in this instance, there has been a general reluctance to accept that an injury outside the ‘place of work’ is compensable.
[14] Acts Interpretation Act 1901 (Cth) s 15AB(1)(a).
[15] Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth), xii.
[16] Re Miller and Australian Overseas Telecommunications Corporation [1992] AATA 196 at [71]; Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318 at 324 (Northrop J); Re Bernard and Australian Postal Corporation [2008] AATA 507 at [55]; Re Hughes and Comcare [2010] AATA 775 at [55]; Re Green and Comcare [2011] AATA 639 at [76].
[17] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 484.
57.On the date of the injury Ms McKenzie had left the hospital and its grounds, crossed a busy public street (Yamba Drive) and a smaller public street (Albermarle Place) and was at the edge of the CIT car park. She had travelled a distance of over 500m from the entrance to the hospital, when the injury occurred. As previously noted, although it was called the ‘CIT car park’, the area was designated specifically for use by hospital staff. Notices in the area indicated that this was the case. The designated area was in use by hospital staff on a temporary basis while the multi-storey car park on the hospital grounds was under construction. ACT Health was the licensee for the area and was responsible for the electricity costs of the lighting which had been installed.
58.The TCH Update Newsletters indicated that a boom gate had not been installed to ensure exclusive use of the portion allocated to the hospital, nor was the car par under the constant supervision or control of security or other guards. In those circumstances, members of the public were also able to access the area and apparently, if the complaints in the TCH Update newsletters are an indication, did so. It was not until 23 July 2010 that the TCH Update No 15 stated that the Hospital would ‘now patrol the entrance to this car park and request drivers to present their hospital ID to gain access’.
59.Ms McKenzie’s accident occurred on 12 July 2010. So at the time of her injury, although the car park was designated for hospital use, access to the area in which the injury occurred was not effectively limited to staff of the hospital. At the time of her accident, surveillance by ACT Health security guards to ensure exclusive use was irregular. In other words, there was no effective control over the area by the Hospital at the time Ms McKenzie was injured.
60.Nor could it be argued that the area was a ‘common area’ since, in accordance with standard form tenancy agreements,[18] that concept is limited to areas such as lifts, toilets, entrances and stairwells within, not outside, an employer’s building, for use by all tenants and on occasions members of the public. These facts, allied with the information that Ms McKenzie and her colleague had apparently not used the regular path to the car park, and that they had crossed nearly half a kilometre of public roads and spaces to reach the area, indicate that the area in which she was injured was not her ‘place of work’. So although she had not actually reached her car and started its engine, she had, nonetheless, embarked on the journey to her place of residence. That means her injury is not compensable in accordance with section 6(1C) of the Act.
[18] Spathis v Hanave Investment Co Pty Ltd [2002] NSWSC 304 at [154]; Wilcox v Richardson (1997) 43 NSWLR 4; Re Green and Comcare [2011] AATA 639 at [89].
Temporarily absent from place of work undertaking an activity associated with her employment
61.It was also contended that Ms McKenzie was temporarily absent from her place of work undertaking an activity associated with her employment.[19] The contention was that Ms McKenzie was ‘expected or encouraged’ to park her car in the CIT car park and since use of her car to get to work was an activity ‘associated with’ her employment, her traversing the locations needed to reach her car fell within the provision.
[19] Act s 6(1)(c)(i).
62.The argument should not be accepted. What Ms McKenzie was doing in walking to her car was an activity associated with her journey home, an activity specifically excluded from being related to employment since the amendments to the Act which commenced in 2007. It was not an activity related to her duty statement.
Temporarily absent from place of work at the direction or request of the employer
63.Nor was the action in walking to her car an action ‘at the direction or request’ of the Hospital,[20] as initially suggested by Ms McKenzie in her claim. This claim was not pursued. Indeed, as the TCH Update newsletters indicate, her employer had consistently exhorted, but not directed, its employees, to try cycling, or walking to work, or to use public transport rather than rely on motor vehicles for transport.[21]
[20] Act s 6(1)(c)(ii).
[21] E.g. TCH Update No 8, 22 February 2010, 2.
Conclusion
64.In summary, although Ms McKenzie’s injury occurred on the curb of an area over which her employer, The Canberra Hospital, held a licence, the area could not be considered to be McKenzie’s ‘place of work’ for the purpose of the Act. It was outside the hospital building, some 500 meters from the entrance, and separated from the hospital premises by public roads over which Ms McKenzie had traversed to reach her car. Nor was she undertaking activities related to or associated with her employment in walking to her car, nor was it an activity she had been directed or requested to undertake. In those circumstances, her injury had ‘not arisen out of or in the course of’ her employment. The decision under review is affirmed.
Date of Hearing 15 November 2011
Date of Decision 22 December 2011
Solicitor for the Applicant Geoff Wilson
Maurice Blackburn Lawyers
Counsel for the Applicant Alan Anforth
Solicitor for the Respondent Amanda Danti
Dibbs Barker
Counsel for the Respondent Peter Woulfe
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