Mozsny and Comcare (Compensation)

[2018] AATA 1966

Mozsny and Comcare (Compensation) [2018] AATA 1966 (4 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2336

Re:Fiona Mozsny

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:4 June 2018

Date of written reasons:        29 June 2018

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the reviewable decision, being the decision of Comcare made 6 March 2017 denying liability to pay compensation to Ms Mozsny in respect of an injury to the left knee sustained 10 December 2016, is affirmed.

.............[sgd]...........................................................

J W Constance
Deputy President

Catchwords

COMPENSATION – injury arising out of or in the course of employment – injury to left knee – weekend social function – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473

EDITED TRANSCRIPT OF ORAL REASONS FOR DECISION GIVEN 4 JUNE 2018

Deputy President J W Constance

29 June 2018

INTRODUCTION

1. Ms Mozsny has applied to the Tribunal to review a decision of Comcare, which refused her application for compensation in respect of an injury which she suffered at a time when she was an employee of the Department of Human Services. Her claim was made in accordance with the Safety, Rehabilitation and Compensation Act1988 (Cth).

2. In colloquial terms, the condition which gives rise to the claim was suffered by Ms Mozsny at “an office Christmas party.” The incident occurred on Saturday, 10 December 2016, and it is not in dispute that Ms Mozsny suffered an injury to her left knee on that occasion.

3. The conclusion that I have come to is that Ms Mozsny’s knee condition was not one that can properly be described as “arising out of, or in the course of” her employment in the legal sense. The result is that the decision rejecting her claim will be affirmed. This means that Ms Mozsny is not entitled to compensation under the Act, subject of course to the appeal rights she has.

   BACKGROUND

4. The event at which Ms Mozsny was injured was held at a winery nearby Ms Mozsny’s place of employment, and was an event organised by one of her work colleagues. It was attended by about 50 per cent of the local office at which Ms Mozsny worked, the total staff of that office being around 40.

5. The facts of this matter are not in dispute. I find Ms Mozsny to be a totally honest witness who gave her evidence to the best of her recollection.

6. The only other witness was Ms Tait, who was called on behalf of the Respondent. She was the service centre manager at the office in which Ms Mozsny worked at the time of the injury back in December 2016. I am satisfied that she is a totally honest witness who gave her evidence to the best of her recollection.

   THE ISSUE

7. The issue in this matter is a narrow one. It is whether the knee condition suffered by Ms Mozsny was a condition “arising out of, or in the course of” Ms Mozsny’s employment by the Department of Human Services.

8. It is important to note that, in a situation such as this, the Tribunal is bound to apply the law. That law consists of the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as interpreted by the courts, and in this case, as interpreted by the High Court of Australia. It is not a matter in which, sitting as the Tribunal, I have a discretion as to the result. It is not a matter of simply looking at what is fair. Instead, it is a matter of strictly applying the law.

   LEGISLATION

9. The relevant legislation is contained in the Safety, Rehabilitation and Compensation Act 1988 (Cth). Section 14 of that Act provides that Comcare:

   Is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

10. An injury is defined in section 5A of the Act, and the relevant provision reads, in part, subsection 1:

    (1)  In this Act:

    “injury” means:

    …

    (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment

11. Section 6 of the Act gives further guidance as to what is meant by an injury arising out of or in the course of employment, but it is not a restrictive definition. It provides a list of circumstances which come within the definition, but it does not limit the circumstances in which I can treat the injury as having arisen out of or in the course of employment. None of those provisions are directly relevant in this matter.

    THE DECISION OF THE HIGH COURT IN HATZIMANOLIS V ANI CORPORATION LIMITED

12. Counsel for the Respondent cited a number of previous decisions of courts and this Tribunal relevant to this matter. Whilst they are certainly helpful in making a decision, many of them are really examples of the application of the law in different circumstances. It is important to note that in each case liability must be assessed on the basis of the facts of the particular matter. However, the decision of the High Court in Hatzimanolis v ANI Corporation Limited[1] sets out guidance as to the application of the relevant sections of the Act. It is a lengthy quotation, but I will read it as part of my decision as it may assist Ms Mozsny in understanding the decision which I have reached.

    [1] (1992) 173 CLR 473.

13. The High Court discussed the “course of employment” in the following terms:

    For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work.[2]

    [2] Ibid at 483.

14. The Court then goes on to discuss examples of this:

    And the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.[3]

    [3] Ibid at 484.

    FACTS

15. I make the following findings of fact based on the evidence of Ms Mozsny, unless I state otherwise.

16. I am satisfied that the event in question, being the social function on the afternoon of Saturday, 10 December 2016, was an event which occurred between two discrete periods of Ms Mozsny’s employment. Her normal hours of employment were Monday to Friday, 7.50 am to 4.30 pm.

17. Turning now to the organisation of the event. Ms Mozsny told me, and I accept, that she had attended a number of Christmas parties over her 15 years of employment by the Department. In only one year had there not been a similar function. In years prior to the events of which I am concerned, there had been a social committee which had some degree of organisation. It seems it was disbanded because of new requirements for the handling of funds.

18. The event in question was organised by a Ms Lehtonen. She was in an APS4 position, and not a senior management position. She volunteered to organise a function at a local winery, being a lunch in the afternoon, to be followed by transfer to another venue for ongoing festivities. The event was initially organised by two volunteers; one of those volunteers left, leaving it then up to Ms Lehtonen. The procedure that Ms Lehtonen undertook can be seen in a series of emails, which appear at ST1, ST2, and ST3 in exhibit R1.

19. The first of those emails was sent on 31 October 2016 when Ms Lehtonen emailed the staff of the office indicating that it was party time again and that she had gone ahead and booked a Christmas party. It gave the venue, the date, the time, and attached a lunch menu. It also and indicated pricing, which was payable by those wishing to attend on an individual basis. It also indicated that Ms Lehtonen had arranged for a community service bus to transport those attending to a further venue after the lunch.

20. Ms Lehtonen sent a second email to the staff on 11 November 2016. It attached a new menu, reminded staff members as to a date by which they were to let her know if they were attending, and advised that she needed lunch orders and payment by 2 December 2016.

21. A third email of 29 November 2016 reminded staff to give Ms Lehtonen their lunch orders and payment, and indicating that she could give further explanation as to the details of the menu if required.

22. The upcoming event was discussed on at least three occasions at team meetings, at which Ms Tait, the service centre manager, was the chair. There is a record of one of those meetings at ST4 in exhibit R1, and that shows, as an agenda item: “Christmas party money and menu choices to Charlene by COB today.” This was recorded in the minutes of a meeting of 30 November 2016. I accept Ms Mozsny’s evidence that similar discussions were held at a number of other meetings.

23. I am also satisfied that Ms Lehtonen spent considerable time in her normal working hours arranging the function, and used the email of the Department in arranging this. Ms Tait said, and I accept, that she was not aware of the precise time that Ms Lehtonen spent, and that in any event, she was quite flexible in relation to the use of the Department’s resources, provided it was in guidelines and was not excessive.

24. The event was not an approved function within the terms set out in a document (ST35 in exhibit R1) issued by the Department of Human Services and entitled “Managing Events Involving Alcohol Consumption.”

25. The document sets out a number of guidelines for social events (whether they are on or offsite) that are departmentally approved and involve the sale and/or consumption of alcohol. It sets out, amongst other things, a flowchart which provides that if it is proposed to serve alcohol at an event, an event manager is to be appointed. The event manager reviews alcohol and drugs guidelines, completes the events involving alcohol management and safety checklist. The proposal is submitted to the manager, and the manager approves or declines the proposal on the basis of risk. Documentation is kept in a departmental file.

26. Ms Tait gave evidence that had she been requested to have this function approved in accordance with these guidelines, she would have been required to send an email to both her immediate superior, an EL2, and to a service leader, both SES officers. The service leader was not onsite, but was located in Canberra, and the EL2 spent one to two days per week in Nowra. Neither of these officers were full-time employees in the office in which Ms Mozsny worked. Ms Tait said that she would have been required to be informed of who was attending, how long the function would take, and would need quotes for the event. It is not in dispute that this process was not followed.

    CONSIDERATION

27. Ms Mozsny argues that although the function was not approved in the formal way that I have outlined, it was a Departmental-approved function, approved at a local level. No one outside the office was involved, and Ms Tait was unaware of the amount of work that was carried out, in Departmental time, in organising the event.

28. Ms Mozsny sought to distinguish her matter from those cases dealing with sports-related injuries, and said that in sport you take on the risk. She did not consider that she was placing herself in any danger in attending a social function such as this. Unfortunately, she was pulled over by someone who had had far too much to drink.

29. Ms Mozsny also pointed out that it was the expectation of staff that a function such as this would be held each year, and that as many staff members as possible would attend. She said that people looked forward to the event. She also referred me to Comcare guidelines as to the occasions when liability can be accepted for injuries at various office events. While I understand Ms Mozsny’s arguments, as I said I must apply the law as outlined and explained in the case of Hatzimanolis. The function was not formally approved. Had it been I may well have come to a different conclusion. However, I should not be taken to be making any finding as to the effect of such approval, as it is not necessary for the purposes of this case.

30. Unfortunately for Ms Mozsny, the fact of whether or not she took on the risk of injury is not a consideration which is relevant, and I cannot take that into account. Similarly, I cannot take into account the fact that there may well have been an expectation that such a function would be held, I have little doubt that there was such expectation, as there has been a similar function held over many years. However, as I said at the beginning, what I have to decide, whether it can be properly said that the knee condition suffered by Ms Mozsny arose out of or during the course of employment.

31. Counsel for the Respondent carefully outlined, in both the Statement of Facts, Issues and Contentions (filed on 12 February 2018) and in oral submissions, a number of factors which it is said would lead me to conclude that Comcare is not liable in these circumstances. I accept those submissions, as in my view they accurately reflect the situation.

32. Ms Mozsny’s usual time of employment was Monday to Friday, 7:50 am to 4:30 pm. This makes the event of the Christmas party, on a Saturday afternoon, an event between discrete periods of employment, and not, as in the alternative circumstances outlined by the High Court, of ongoing employment.

33. In addition, the function was held outside Ms Mozsny’s normal place of employment. Whilst this is a factor to be considered, of course it is not, itself, determinative. I am satisfied that it was not at a place or at a time directed by the employer, and I am satisfied also that the organisation of the event was voluntary, and that attendance was voluntary. There were other people involved, to the extent that members of families and partners were able to attend if they wished. However, there is no evidence as to whether in fact this happened, but the important consideration is that it was open to others.

34. I also take into account that those attending the function paid their own way, made their own travel arrangements to and from the event. The additional travel between the venue in which the injury occurred and a later venue was arranged by Ms Lehtonen, and not by the Department as such. There were no financial contributions of the Department, and on the evidence available to me, there was no evidence to indicate that there was any inducement or encouragement by the Department for staff to attend. I cannot accept that by allowing a discussion of the events, as part of a team meeting, or the use of departmental time or email, in these circumstances, could be said to amount to inducement or encouragement.

35. Ms Mozsny was not at work and she was not carrying out any work-related duties at the time she was injured. Importantly, in my view, it was not approved within the guidelines issued by the Department to which I have referred.

36. Finally, I accept the Respondent’s argument that the use of Departmental time and resources by Ms Lehtonen does not equal encouragement or direction. There was a later Christmas lunch that was held annually within the office. However, I do not make any finding in relation to whether had the injury occurred at such a lunch, whether it would be compensable. I do this quite deliberately because it has not been fully argued before me, and it is not necessary that I make that decision as part of the process of reaching the conclusion I have reached. That may well be for another occasion, and I expressly note that anything I have said should not be taken as a finding in relation to such an event. It is not the event with which I am concerned.       

    CONCLUSION

37. The reviewable decision, being the decision of Comcare made 6 March 2017, denying liability to pay compensation to Ms Mozsny in respect of an injury to her left knee sustained on 10 December 2016 will be affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..............[sgd]..........................................................

Associate

Dated: 29 June 2018

Date(s) of hearing:	4 June 2018
Applicant:	In person
Counsel for the Respondent:	Ms K Katavic
Solicitors for the Respondent:	Ms S William