Mustica and Comcare (Compensation)

Case [2019] AATA 5426

Mustica and Comcare (Compensation) [2019] AATA 5426 (17 December 2019)

Division:GENERAL DIVISION

File Number:          2018/1331

Re:Jason Mustica

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:17 December 2019

Place:Melbourne

1.        The reviewable decision dated 12 January 2018 is set aside.

2.In substitution for the decision it is decided that on 7 September 2017 the Applicant suffered an injury to his right knee that arose out of his employment.

3.The Respondent is liable to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury.

4.Within 14 days of this decision each party may apply to the Tribunal for directions in relation to costs.  Should such an application not be made, the Respondent shall pay the cost of the proceedings incurred by the Applicant.

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

Senior Member D. J. Morris

Catchwords

COMPENSATION – injury sustained while employee running for bus – whether injury arises out of, or in the course of, employment – injury occurs after employee has completed work for the day and is travelling home – employee was travelling to use staff car park – authorised to use car park – car park not in control of employer – what is a reasonable causal connexion in terms of an injury sustained incidental to employment – decision under review set aside and new decision substituted that injury arose out of employment.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 6, 14

Safety, Rehabilitation and Compensation Amendment Act 2007 (Cth)

Cases

Charles R. Davidson v M’Robb [1918] AC 304
Foster v Penfold (1934) 27 BWCC 240
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Henderson v Commissioner for Railways (WA) (1937) 58 CLR 281
Humphrey Earl Limited v Speechley (1951) 84 CLR 1261
Lawrence v George Matthews (1924) Ltd [1929] 1 KB 1
Mannall v Howard (No 2) [2019] ACTSC 113
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Law (1980) 47 FLR 57
Ronevich v Repatriation Commission (2006) 222 CLR 115
St Helens Colliery Company, Limited v Hewitson [1924] AC 59
Smith v South Normanton Colliery Co Ltd (1902) 5 WCC 14
Stewart v Metropolitan Water, Sewerage and Drainage Board (1932) 84 CLR 216
Stewart & Son (1912), Limited v Longhurst [1917] AC 249
Telstra Corporation Ltd v Bowden (2012) 206 FCR 207
Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412

Weaver v Tredegar Iron and Coal Company, Limited [1940] 3 All ER 157

Secondary materials

Peter Sutherland & John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, 2018)

REASONS FOR DECISION

Senior Member D. J. Morris

17 December 2019

Background

  1. Mr Jason Mustica (the Applicant in this matter) is employed as a biosecurity officer by the Department of Agriculture (the Department).  He is a permanent employee and commenced with the Department’s predecessor in October 2010.  His principal…

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Details
AGLC
Mustica and Comcare (Compensation) [2019] AATA 5426
Case
[2019] AATA 5426
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Mustica against a decision by Comcare which denied his claim for compensation for a knee injury. Mr. Mustica sustained the injury while jogging to catch a staff shuttle bus after finishing his shift at Terminal 2. The dispute centred on whether the injury arose out of, or in the course of, his employment, as required by section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The decision was made by Deputy Principal Registrar D. J. Morris SM.

The court was required to determine whether Mr. Mustica's knee injury, sustained after he had completed his work duties and was travelling to a staff car park via a public concourse to catch a shuttle bus, arose out of or in the course of his employment. Specifically, the court had to consider if there was a sufficient causal connection between the injury and his employment, given that the shuttle bus was used by various airport personnel and the staff car park was not exclusively controlled by his employer.

Deputy Principal Registrar Morris SM reasoned that while Mr. Mustica had left the immediate work area and was traversing public spaces, his employment could extend beyond the strict performance of duties. Applying principles from established authorities, including *Stewart v Metropolitan Water, Sewerage & Drainage Board* and *Weaver v Tredegar Iron and Coal Company, Limited*, the court considered that employment can continue for a reasonable extension in both time and space beyond the physical workplace, particularly when an employee is using a facility or means of access permitted by their employment. The court found that Mr. Mustica's actions in leaving the terminal and proceeding towards the shuttle bus, which was a means of accessing the staff car park, constituted a reasonable egress from his workplace.

Consequently, the reviewable decision of 12 January 2018 was set aside. The court substituted a new decision finding that Mr. Mustica suffered an injury to his right knee that arose out of his employment on 7 September 2017, and that Comcare was liable to pay compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The court also made directions regarding costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Horner said that Mr Mustica’s main argument is that the injury arose out of his employment, not necessarily ‘in the course of’ employment in terms of section 5A of the SRC Act.Evidence of the Applicant Mr Mustica told the Tribunal that in his normal working day he spent the majority of his time in Terminal 2 working on the ground floor. He also worked in the Level 1 general office where he would sign in, check emails, have meal breaks, and sign out. On 7 September 2017 Mr Mustica said that he signed off at the end of his shift at the Level 1 general office and walked back downstairs. His supervisor told him he could leave because the next team (which was relieving his team) had arrived, and he then left the general office. The Tribunal was referred to a sign out sheet where Mr Mustica initialled that he had finished his shift at “1531” hours (T8.4, p 29). Mr Mustica said he actually left around 3.15 p.m. because the relieving team had arrived and his supervisor had told his team they could leave. He explained there was a grace period between one team relieving another, to allow team members either to collect or stow their radios, knives and other work items. Mr Mustica said he then commenced a walk of, he estimated, ‘around 10 to 15 minutes’ to the bus stop where the staff shuttle bus picked up employees. He left the Terminal 2 building through the retail area, went through the area of the building where members of the public wait for arriving passengers and then walked out of Terminal 4 onto the public concourse. Some of the other members of his team were walking ahead of him. Mr Mustica told the Tribunal he was walking at normal pace and then saw the staff shuttle bus at the kerb. He said he knew he had to be back at the residence of his parents-in-law because they had picked up his young son from school and his father-in-law had a medical appointment. Mr Mustica explained he needed to catch the bus in order to have enough time to get to the car park, and then drive home to enable his father-in-law to make this medical appointment. Mr Mustica said that is why he picked up his pace and jogged to the bus. Mr Mustica said there is a slight incline leading down to the kerb but he couldn’t say whether he was on the flat or the incline when he heard “a loud pop and basically like I’d been shot in the knee…” He said he did not fall, and he ‘hopped’ to the bus. Mr Mustica said the shuttle bus operates 24 hours a day, with a service about every 15 minutes. He said the bus is used not only by Department employees but also a range of other people who work at the airport, such as the staff of three airlines, persons working at retail concessions, and the staff of other government agencies. In terms of his duties that day, Mr Mustica said that he had travelled to Mount Waverley for work to inspect some food, using a Department vehicle provided for the purpose. Because this travel had overlapped his normal lunch break, his supervisor had offered that he could leave early, around 2.30 p.m., but he thought that was too early and stayed on until the normal end of his shift.

Decision

Reasons for decision

The Tribunal closes by noting that Mr Mustica was a frank and honest witness, and that counsel for both parties approached this matter in a constructive manner and strove to provide a list of agreed authorities, which was of great assistance in the Tribunal’s consideration.DECISION 1. The reviewable decision dated 12 January 2018 is set aside.2.In substitution for the decision it is decided that on 7 September 2017 the Applicant suffered an injury to his right knee that arose out of his employment.3.The Respondent is liable to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury.4.Within 14 days of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, the Respondent shall pay the cost of the proceedings incurred by the Applicant.

Ratio Decidendi

Legal Principle Established

Mr Mustica told the Tribunal that a range of other people employed at the airport also use the staff car park, including persons employed by retail concessions, some airlines and the border agencies. He explained that to enter and exit the staff car park required the use of an access card to lift a boom gate.CONSIDERATIONThe legislative framework The SRC Act provides, at section 5A(1):1In this Act:“injury” means:(a)a disease suffered by an employee; or(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; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;… Mr Ternes said the Respondent conceded that there was an injury, within the non-defined meaning of the word ‘injury’, which resulted in impairment and/or incapacity for work. Comcare described this to the Tribunal as the injury simpliciter.The written submissions of the Applicant Mr Horner submitted that the knee injury suffered by Mr Mustica occurred while he was using permitted egress from his workplace, and as such the injury arises out of or in the course of his employment. He submitted that the words ‘arising out of’ connote a causal connexion with employment but not one that is considered to be limited to the “actual performance of duties”, citing Murphy J in Telstra Corporation Ltd v Bowden (2012) 206 FCR 207. His Honour in that case was referring to the dicta of Russell LJ in Lawrence v George Matthews (1924) Ltd [1929] 1 KB 1, at [19], which was adopted by the High Court of Australia plurality (Gavan Duffy CJ, Evatt, McTiernan JJ) in Stewart v Metropolitan Water, Sewerage & Drainage Board (1932) 48 CLR 216. Mr Horner cited another English (House of Lords) authority, Weaver v Tredegar Iron and Coal Company, Limited [1940] 3 All ER 157 where Lord Atkin stated, at [966]:...there can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the down tools signal is given, or when the actual workshop where he is working is left. In other words the employment may run on its course by its own momentum beyond the actual stopping place. There may be some reasonable extension in both time and space… In the same case, Lord Romer stated, at [983]:…it must, in my opinion, be taken to have been settled by the authority of this House that, after a workman has finished his day’s work and starts out on his way home, his employment continues while he is traversing the premises on which he has been working and any private means of access thereto which he is only entitled to use by reason of his status as a workman, but that, unless engaged on some special errand for his employer, which necessitates his being there, his employment ceases when he reaches a place to which the public have a right of access such as the public street. From that moment he loses his identity as a workman, and becomes one of the general public. A similar principle, of course, applies to a workman on his way to work.