Mustica and Comcare (Compensation)
[2019] AATA 5426
•17 December 2019
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, 14Safety, 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 412Weaver 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
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 place of work is at Melbourne International Airport, but his duties also include travelling to other sites to inspect food and plant matter to ensure compliance with Australia’s biosecurity regulatory regime. When working at the airport, Mr Mustica generally works in the International Arrivals Hall in Terminal 2, but he also works in the general office and other parts of the airport, including when he inspects goods on board aircraft parked on the apron.
Mr Mustica claims that on 7 September 2017 he suffered a meniscal tear to his right knee when, at 3.21 p.m. that day, he was outside of Terminal 4 at the airport, ‘lightly jogging’ to a bus that was pulled up at the kerb. The bus was a staff bus provided by the airport to ferry persons from the terminal precinct to the staff car park.
On 20 October 2017 Mr Mustica submitted a Worker’s Compensation Claim. On 23 November 2017 a delegate of Comcare (the Respondent), while recognising that Mr Mustica suffered an injury, decided that the injury did not arise out of or in the course of Mr Mustica’s employment and declined his claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The delegate stated that they were satisfied that Mr Mustica was suffering a ‘meniscus tear in the right knee as a result of lightly jogging to the Skybus outside Terminal 4’, but were not satisfied that the injury occurred within the boundaries of Mr Mustica’s workplace.
Mr Mustica disagreed with the delegate’s decision and sought reconsideration by Comcare. A review officer undertook an independent review and on 12 January 2018 affirmed the original decision. This is the decision Mr Mustica has brought to the Tribunal for review.
Hearing
The hearing was conducted on 28 June 2019. Mr Mustica was represented by Mr Nicholas Horner, of counsel. The Respondent was represented by Mr Ray Ternes, of counsel. Mr Mustica gave evidence and was cross-examined. Both parties submitted statements of facts, issues and contentions.
Mr Ternes tendered a bundle of documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-documents), which were admitted into evidence as Exhibit R1. Mr Ternes also tendered witness statements which were admitted into evidence: from Mr Chris Medwin dated 22 March 2019 (Exhibit R2); and from Ms Kathy Belka lodged on 26 March 2019 (Exhibit R3). Mr Mustica submitted a written statement dated 27 June 2019 (Exhibit A1). An aerial map of part of the Melbourne International Airport complex, as hand-marked, was admitted in the course of the hearing (Exhibit R4).
At the conclusion of the hearing the Tribunal gave leave for parties to lodge a joint list of authorities and written closing submissions. The Applicant responded with written closing submissions on 24 July 2019, and the Respondent on 31 July 2019. Each party provided a list of authorities but the book of authorities, jointly provided, was not given to the Tribunal until 7 October 2019, following a request from the Tribunal.
Issues before the Tribunal
The parties agreed that the questions before the Tribunal were as follows:
·Whether Mr Mustica’s condition arose out of, or in the course of, his employment.
·Whether Mr Mustica sustained his injury within the boundaries of his workplace or on his journey home to his place of residence.
Applicant’s opening submissions
Mr Horner told the Tribunal that Mr Mustica sustained a meniscal tear to his right knee on 7 September 2017. This necessitated surgery, and the tear was repaired on 12 December 2017. Mr Mustica returned to full-time work with modified duties on 13 January 2018. He has since progressed to full duties.
On 7 September 2017, Mr Mustica ended his shift and signed out. He walked through Terminal 2 to Terminal 4 and left the terminal complex and was proceeding to the bus stop to catch the shuttle bus to the staff car park. Mr Horner said it is not disputed that the bus is not solely for employees of the Department, but for all airport employees to take them to the secure staff car park about 2 kilometres from the main terminal buildings.
Mr Horner explained that a requirement to travel on the shuttle bus is that a passenger has an airport ID card. He said that there is ordinarily a fee charged by Melbourne International Airport for staff members to use the secure staff car park, but that there is an arrangement between the airport management and government agencies that the employees of those agencies do not pay the fee. However, a government agency must verify that a particular employee applying for a car park access card is, in fact, employed by the relevant agency. Employees may only use the staff car park for employment purposes. They may not, for instance, use the staff car park when travelling privately or meeting family or friends from arriving flights.
Mr Horner submitted that it is an incident of employment that an employer provides safe access to and from the workplace. He agreed that the use of the staff car park was an option available to employees to leave work and that, in his submission it wasn’t until Mr Mustica had left the car park and was on the public highway that he had ‘commenced his journey home’.
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.
Mr Mustica told the Tribunal that the distance from the bus stop to the staff car park was about 2 kilometres. He agreed that it was not a Department requirement that he used the staff car park and that there were other options to get to and from the airport, such as public transport or the publicly-available Sky Bus service. He said that when he was engaged by the Department in 2010 he was provided with the paperwork to fill out to get an access card for the staff car park (an example is at T8.6 p 31).
Mr Ternes questioned Mr Mustica about other options he potentially could use to get to and from work, such as cycling or using other bus services. Mr Mustica said that because of the hours of his shifts there was no realistic option other than to drive to and from work, but conceded that there were other ways he could, hypothetically, get to and from work at the airport.
Mr Mustica said he contacted his supervisor and told them he had hurt his knee. He took the following day off and went to see his general practitioner that day.
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.
CONSIDERATION
The 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.
The facts in that case were that Mr Weaver, a colliery miner, worked at a pit which abutted a railway line. There was no regular station at the railway but, by an arrangement between the respondents and the railway company, the latter provided platforms at which trains called at the time of the colliery change of shifts. Access to the platforms was permitted only to the respondent’s employees. On leaving work one day, Mr Weaver went to the platform to travel home but, owing to a crush of workmen on the platform, he was accidentally pushed off on to the line and was injured by an approaching train. He claimed compensation.
The House held that Mr Weaver was making use of the platform provided by an arrangement with his employer, was on premises which the respondents, for the purpose of the employment, had obtained for him a licence to use and on which he had no right to be except by the conditions of his employment. For these reasons the accident was found to have arisen out of and in the course of employment, and Mr Weaver was therefore entitled to compensation under the relevant Act.
Mr Mustica submitted that, at the time of his injury, he was going to the staff car park and that he had access to that staff car park solely because he was an employee of the Department of Agriculture.
In Bowden, the facts were that Mr Bowden suffered an injury after he arrived at work early and tried to move a large waste bin that was blocking access to the car space supplied for his partner to use by his employer, but which he had permission from her to use (he worked for the same employer). The Court held that in determining whether an injury was sufficiently causally connected to a person’s employment such that it ‘arose out of’ that employment within section 5A(1)(c) of the SRC Act, the question of whether the event giving rise to injury was something that the person was required or expected to do to carry out his or her actual duties is irrelevant. However this does not apply to exclude a broader consideration of whether the injury arose out of employment.
Mr Horner submitted that in this matter, Mr Mustica would not reach the place to which the public had a right of access until he had taken his car from the secure car park provided only for the use of various agencies and employers operating at Melbourne Airport. He submitted that Mr Mustica had not ‘reached the public highway’ because the point at which the knee injury occurred was not the public highway but rather an area of private land to which the public had access.
Mr Horner further submitted that by Mr Mustica’s employer, the Department of Agriculture, sponsoring him to use the employee car park, that indicated that the use of that car park and getting to and from that car park had been ‘permitted’ by the Respondent.
Mr Horner also drew the Tribunal’s attention to Stewart & Son (1912), Limited v Longhurst [1917] AC 249. This case concerned Mr Longhurst, a carpenter who was working on repairs on a barge moored in South-West India Docks in the Port of London. The docks were under the control of the Port of London and not open to the public, but the workmen had permission of the Port of London Authority to pass through the docks on their way to and from the barge. One evening at 8 p.m. Mr Longhurst left the barge and, while passing along the quay, missed his way, fell into a lock and was drowned. At first instance, the county court judge disallowed a compensation claim brought by his widow, holding that when the deceased got off the barge on to the quay, the relationship of master and servant ceased “as completely as if he had got off the barge on to the high road”.
The House of Lords disagreed. Lord Finlay LC held, at [253]:
Actual ownership or control by the employer of the spot where the accident occurred is not essential. The workman comes there on his way to and from his work and may be regarded as in the course of his employment while passing through the dock or other open space to and from the spot where his work actually lies. Such passage is within contemplation of both parties to the contract as necessarily incidental to it.
Mr Horner pointed out that Murphy J in Bowden (at [25]) noted that until 2007 the SRC Act contained provisions that extended the meaning of ‘employment’ by deeming it to cover journeys between the employee’s residence and usual place of work, but these so‑called ‘journey’ provisions were repealed when section 6(1)(b) of the SRC Act was enacted in its current form. He submitted that the effect of sections 6(1)(d) and 6(1C) of the SRC Act is that an injury suffered on a journey to or from work is not to be treated, by reason of that travel, as an injury that arose out of or in the course of employment.
However, His Honour went on to say, at [26]:
Importantly, while the Act no longer deems employment to include journeys to or from work, s 6(1) does not operate to reduce the scope of “injury” in s 5A(1). This is so because s 5A(1) provides:
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 the injury shall be so treated if it was sustained:
…
It is common ground between the parties that if the injury suffered by Mr Bowden arose out of his employment as contemplated by s 5A(1) then Telstra is liable to pay compensation.
The written submissions of the Respondent
Mr Ternes submitted that, generally speaking, injuries sustained by a person between the person’s place of work and home do not arise out of, nor are in the course of, employment. The Supreme Court of the Australian Capital Territory held in Mannall v Howard (No 2) [2019] ACTSC 113, at [94]:
In Smith v Stages [1989] 1 AC 928, the issue was whether an employee who had been paid wages for the time taken to travel to and from a worksite was acting in the course of his employment when he chose to do so by car and had an accident. Lord Goff articulated (at 936) “the simple proposition that, in ordinary circumstances, when a man is travelling to or from his place of work, he is not acting in the course of his employment”. He identified however that “Nice points can arise about the precise time, or place, at which he may be held to have arrived at work”. Similarly, “he is not acting in the course of his employment when he is travelling home after his day’s work is over”. He then went on to address (at 937) the more difficult case with which he was faced, posing the question: “But how do we distinguish the cases in this category in which a man is acting in the course of his employment from those in which he is not? The answer is, I fear, that everything depends on the circumstances.” The judgment of Lord Lowry accepted (at 954) that the test in Vandyke v Fender [1970] 2 QB 292 as the correct test in situations to which it applies and identified as one of his principles that “An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment…” (at 955-956).
Mr Ternes submitted that identifying the precise point at which a person ceases to be within (or enters) workers’ compensation coverage is not always clear. He drew the Tribunal’s attention to the judgement of the Court of Appeal of England and Wales in Smith v South Normanton Colliery Co Ltd (1902) 5 WCC 14, where Sir Richard Collins MR said:
While the workman is physically engaged in making his exit from the place where he is employed, I think the employment would still continue for the purposes of the Act, and the workman would still be entitled to the protection thereby given. But, although the employment may continue during the interval which is necessarily occupied by the workman, after his suspension from work, in getting off the employer’s premises, there must come a time, after the suspension of a workman, when he can no longer be said to be engaged in the employment, so that, if an accident happens to him, it can be said to arise out of and in the course of employment. It appears to me to be a question of fact where the line is to be drawn, but there must be a line beyond which the liability of the employer cannot continue.
The Tribunal notes that this case concerned a boy working in a coal mine who was loitering about after finishing his work when a roof caved in and he was injured. There was some evidence that he had been ordered not to go to the bottom of the pit, where he was injured, but ignored that order.
In terms of the law concerning ‘arising out of employment’, Mr Ternes cited Ronevich v Repatriation Commission (2005) 222 CLR 115, where the High Court held, at [23]:
…whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.
In terms of the law concerning ‘in the course of employment’, Mr Ternes submitted that a temporal connection with employment was required – was the injury during the working day? Mr Ternes cited the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, at [483]:
The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.
Mr Ternes submitted that the test is whether a person is doing something which he or she was reasonably required, expected or authorised to do in order to carry out his or her duties, citing Humphrey Earl Limited v Speechley (1951) 84 CLR 1261.
The facts of this case were that Mr Speechley was employed to service machines supplied by his employer to various shops in a region of Victoria. One day he was working at a shop in a seaside village when at about 2 p.m. he and the shop proprietor agreed to go out to lunch together. Mr Speechley insisted on a hot fish lunch. This was not obtainable in the village, nor in the next closest village, so Mr Speechley and the proprietor rode to another village on a motorcycle with sidecar owned by Mr Speechley’s employer. They had lunch and on the return journey were involved in a road accident. Mr Speechley was injured for which he claimed compensation as having been sustained in the course of employment. The Court held that the journey by Mr Speechley for the fish lunch was on a purpose of his own not fairly resulting from the nature and incidents of his employment, and therefore he was not entitled to compensation under the Act.
Mr Ternes submitted that the High Court has recognised that the performance of tasks incidental to the performance of one’s work will fall within the scope of the test, citing Henderson v Commissioner for Railways (WA) (1937) 58 CLR 281.That case concerned compensation for a widow whose husband was killed when he was struck by a railway engine as he attempted to cross the railway track at lunchtime. Dixon J (as he then was) held, at [294]:
Cases of this description are never easy…..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 the 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 authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer’s premises and work as an ordinary member of the public is another matter of weight.
In St Helens Colliery Company, Limited v Hewitson [1924] AC 59, the House of Lords considered access to workers’ compensation in a case where a workman was injured in a railway accident while travelling in a special colliers’ train from his work to his home. By an agreement between the colliery company and the railway company, the latter agreed to provide special trains to take workmen to and from the colliery. The colliery company agreed to indemnify the railway company against claims by the workmen in respect of accident, injury or loss while using the trains. In addition, any workman who wished to travel by these special trains signed an agreement with the railway company releasing them from all claims in case of accident. The colliery company then provided him with a pass, charging a sum which was deducted from his weekly wages.
Lord Buckmaster (as he then was) held, at [67]:
The workman was under no control in the present case, nor bound in any way either to use the train or, when he left, to obey directions; though he was where he was in consequence of his employment, I do not think it was in its course that the accident occurred.
Lord Atkinson held, at [70]:
If each collier was bound by his contract to travel to his employer’s colliery by this provided train, then cadit quaestio. The collier would be in the course of his employment when he was doing a thing he was bound by his contract of service to do. But the conferring upon the collier of a privilege which he is free to avail himself of or not would, prima facie, impose no duty whatever upon him to use it. It must, however, be borne in mind that if the physical features of the locality be such that the means of transit offered by the employer are the only means of transit available to transport the workman to his work, there may, in the workman’s contract of service, be implied a term that there was an obligation on the employer to provide such means and a reciprocal obligation on the workman to avail himself of them.
The facts in Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412 were that Ms Williams slipped on water and fell on the floor of the foyer in the building where she worked in Collins Street in the centre of Melbourne. She was on her way to work. As a result of the accident, Ms Williams suffered serious injuries, including spinal injuries. Beach J, at [75] stated:
…I accept that Ms Williams’ injuries occurred while she was using a permitted (if not expected) means of gaining access to her work area. Further, Ms Williams was in the foyer of the building, not as a member of the public, but only by virtue of her employment. Additionally, she was proceeding in the building directly to her work area. Accordingly, I am satisfied that Ms Williams’ injuries arose out of or in the course of her employment within the meaning of s 82 of the Act.
Mr Ternes submitted that when the injury simpliciter occurred, Mr Mustica had signed off at the end of his shift, not at lunchtime, and that his employer, the Department of Agriculture, had no role in regulating the car park. Instead, its role began and ended with providing Mr Mustica with the form to fill in to confirm he was an employee of the Department. Mr Ternes also submitted that the Department had no control over the area where Mr Mustica was injured, or of the car park, or any area of his journey on 7 September 2017 once he had left the secure area in Terminal 2. Mr Ternes submitted that because the Applicant took his completed car park permit form to the Melbourne Airport office, this fact suggests it was an arrangement of a ‘private nature’ rather than being work-related in the sense that Mr Mustica was arranging his own transport to and from work.
Mr Ternes submitted that it was when Mr Mustica left the secure area of Terminal 2 that he effectively ‘reached the public highway’. He argued that simply re‑entering a restricted area, the car park, did not bring Mr Mustica into the domain of employment because the car park is used by staff of many employers, not just the Department. Mr Ternes submitted that there was insufficient causal connexion between the injury Mr Mustica sustained and his employment, and as a consequence the injury ought not to be regarded as having arisen out of his employment.
The medical evidence before the Tribunal, undisputed by the parties, is that Mr Mustica was injured on 7 September 2017 by a meniscal tear to his knee. Before the Tribunal (T6, p 11) was a report by Dr Simone Ryan, consultant occupational physician, dated 28 November 2017. Under the heading ‘Mechanism of Alleged Injury/Sequence of Events’, Dr Ryan wrote:
Ultimately [Mr Mustica] was diagnosed with a right knee acute medial meniscal triple tear and a secondary Baker’s cyst and secondary bursitis. He has been referred to orthopaedic surgeon Dr Hartnett who has recommended surgery.
Based on the medical evidence, the Tribunal finds that Mr Mustica suffered an injury on 7 September 2017.
For completeness, noting that Mr Mustica had commenced his journey home on 7 September 2017 before the formal end of his shift, the Tribunal accepts the unchallenged evidence that there was a grace period and that he had been given permission by his supervisor to leave slightly early, so he had essentially finished his duty for the day around 3.15 p.m.
Whether the injury Mr Mustica sustained is an injury which satisfies that description in section 5A(1)(b) of the SRC Act turns on the facts. As the learned authorities have made clear, these questions are sometimes difficult to determine. They depend to a large extent on the particular facts leading to the person’s injury occurring.
Although Mr Horner submitted Mr Mustica’s argument was that his injury ‘arose out of’ not ‘in the course of’ his employment, it is desirable for the Tribunal to consider this phrase generally.
The Annotated Safety, Rehabilitation and Compensation Act 1988 (at p 94) states:
“Arising out of” denotes a causal relationship, the “course of employment” denotes a temporal one; however, there is much overlapping between the two concepts. In Charles R Davidson and Co v M’Robb [1918] AC 304, Lord Finlay LC said, at [314]:
“Arising out of the employment” obviously means arising out of the work which the man is employed to do and what is incident to it – in other words, out of his service. “In the course of his employment” must mean, similarly, in the course of the work which the man is employed to do, and what is incident to it – in other words, in the course of his service.
…
The test for “in the course of his employment”, often adopted, was set out in Humphrey Earl Ltd v Speechley (1951); Dixon J said:
[T]he question whether it occurs in the course of employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorized to do in order to carry out his duties…
(Emphasis added.)
This phrase reasonably required, expected or authorized to do in order to carry out his duties was used by Heerey J (in dissent) in Ronevich in the Full Federal Court, and this phrase was expressly approved by the High Court when Ronevich was heard on appeal from the Full Federal Court.
In this case, the Respondent concedes that some of the background facts support the argument that Mr Mustica’s injury was incidental to his employment, as that term is used in Henderson. In particular, the Respondent said that the Department sponsored Mr Mustica to obtain a pass for the car park and the bus used by staff, and the car park itself, are not accessible to the general public.
The Respondent submits that there are a number of facts which flow in the opposite direction, against this being a compensable injury. Mr Mustica had signed off and been given permission by his supervisor to leave work. The place where he was injured was not within the control of the Department. The Department does not control how Mr Mustica travels to and from work, and it was a matter of choice as to what he did after he signed off at the end of the shift.
The Tribunal notes that Mr Mustica was injured on the public concourse near the bus stop and that this area was not in the control of the Department. However, it also notes that this fact is not necessarily fatal to his claim. For instance, none of the quay in Longhurst, or the railway platform in Weaver, or indeed the building foyer in Williams, was in the control of the person’s employer.
It is relevant in this consideration that the staff car park where Mr Mustica parked, and where he was heading when the injury occurred, is not available to the public. He could not park there unless he was employed by an airport tenant whose staff were so authorised by Melbourne International Airport, in his case the tenant being the Department.
Mr Mustica gave fair evidence that there were limitations on where he could park at the airport because of his shift work. While the Tribunal considers that Mr Ternes’ submission that Mr Mustica could have chosen to cycle to work, was far-fetched, it notes there was no requirement by his employer for him to use the car park. However, it is relevant that Lord Romer held in Foster v Penfold Ltd (1934) 27 BWCC 240, at [259] that it is enough that the worker was leaving the place of work in “any permissible way and in any permissible manner” (cited with approval by Murphy J in Bowden).
When new Department employees commenced at Melbourne airport, the Department emailed them a printable form headed “DAWR Staff Parking Card Application” (a copy of a blank form was at T8.6, p 31). The Respondent submitted that the Department’s role was limited to sending new employees an email attaching the parking pass application form and that any next steps that an employee took were up to them. However, Mr Mustica said in his evidence he filled in the form and had it endorsed by his supervisor. He then took it to the Melbourne International Airport office and was issued a car park pass.
Mr Chris Medwin is the Assistant Director, Business Services, Southeast Region, of the Department. He provided a written statement (Exhibit R2) in which he stated that he is “responsible for the day-to-day administrative arrangements with respect to buildings, property and maintenance”. In respect of the car parking arrangement relevant to Mr Mustica, Mr Medwin wrote:
The staff car parking arrangement
Employees of the Department, such as the Applicant, who work within the terminals of the Melbourne Airport, are eligible to apply for access to the Melbourne Airport Staff Car Park (the staff carpark). I believe that employees of all border agencies at the airport are eligible to apply.
In order to gain access to the staff carpark, an employee must submit an application for a staff parking card. This application is first submitted to the Business Support Team at the Department (being the team in which I work). A member of the team will endorse the application so as to confirm that the applicant is an employee of the Department. We will return the endorsed application to the employee who will then submit the application to the Parking and Ground Transport Customer Service Centre at Melbourne Airport.
The Department is not required to make any payments, monthly or otherwise, to Melbourne Airport for use of the staff carpark by its employees, nor are our employees allocated a car parking space within the staff carpark.
As a ‘Sponsoring Employer’, the only obligation on the Department is to confirm whether an applicant is an employee or not. This is where the Department’s obligations begin and end. The Department is not, for example, responsible for providing its employees with the permit to access the staff carpark. If an employee loses their permit, this is not a Departmental liability but, rather, it is the responsibility of the employee to pay for a replacement which is obtained from, and provided by, Melbourne Airport.
Mr Medwin went on to say he was aware of the courtesy bus provided by Melbourne Airport, through Sky Bus, to take employees to the staff car park, but that the Department has no responsibility for this bus service. Mr Medwin also explained the only areas the Department leases at Melbourne Airport are an administrative area at Level 1 of Terminal 2 and an office space on the ground floor of Terminal 2.
The Tribunal considers that Mr Mustica was not ‘required or expected’ to use the staff car park; however his use of it was ‘authorized’ (per Dixon J in Speechley). The Department provided him with a specific form headed with the Department name, and at Part 2 of the form, the name, ‘company’ and signature of an officer of the sponsor (in this case the Department) was required before an employee could take it to the Melbourne Airport office to be issued with an access card. Mr Medwin aptly described this as ‘endorsement’ by the Department of the form.
In the terms of the language of Hatzimanolis, I find that the email to Mr Mustica from the Department providing him with a parking pass application form, together with the endorsement of that form by a supervisor, amounted to an ‘inducement or encouragement’ for him to act in a particular way. While, as I have said, there was no requirement for Mr Mustica to use the staff car park, there was plainly encouragement for him so to do, encouragement amplified by the fact that a parking space was available to an authorised employee of the Department free of charge. I explicitly reject the submission of the Respondent that, simply because Mr Mustica took his form to Melbourne Airport and was issued with a car park access card, this should be viewed as a ‘private’ arrangement. The Applicant had first to be issued with the form by the Department, and then, having filled in his details, had to return it to them for endorsement as the sponsor, before he took the form to the Melbourne Airport office. It was not a private arrangement. The access card issued on the strength of the form was something Mr Mustica received from Melbourne Airport through the authorisation of his employer.
Murphy J in Bowden at [37] referred to the High Court’s approval (in Repatriation Commission vLaw (1981) 147 CLR 635) of the Full Federal Court decision in Repatriation Commission vLaw (1980) 47 FLR 57, where the Full Court said at [68]:
It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.
…
The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description of “arising out of”.
What is required for an injury to arise out of employment is a causal connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous.
I am satisfied that there is a sufficient causal connexion between Mr Mustica’s employment and his injury which is not fanciful or tenuous. There is a significant distance in the journey Mr Mustica was taking that day when he suffered the knee injury. He left the secure area at Terminal 2, and then walked from Terminal 2 to Terminal 4 and out onto the public concourse, and he was injured adjacent to a bus stop only used by the staff courtesy shuttle bus. But he would not have been at that place except for the fact that he was employed by the Department. Added to this, it was accepted by the Respondent that Mr Mustica could not use the staff shuttle bus without an airport ID card, and he only had such a card because of his employment by the Department.
I do not find it fatal to his case that members of the public can also use the public concourse (as per the foyer in Williams), because Mr Mustica was not in the place where the injury occurred as a member of the public on the day he sustained the injury, he was there because he was an employee of the Department.
There was no submission by either party that access to the secure car park was a condition of employment, but I do not find that determinative, nor is the fact that the Department did not lease or control the staff car park. It is clear on the evidence before me that the Department had an established arrangement with Melbourne Airport for the provision of parking for its employees at that staff car park. The Department had given Mr Mustica a form to allow him that access, and a manager had endorsed the form for him to then take to the airport authorities to be issued a card to operate the secure car park boom gate, enabling him to park his car there.
I find that the Applicant’s working day had finished at the time of the injury, but that, to use Lord Atkin’s words in Weaver, some reasonable extension both in time and space may occur (this is called in some jurisdictions the doctrine of notional extension). While I do not accept Mr Horner’s submissions that Mr Mustica did not enter a place accessible by the public until he left the secure car park, that fact is not relevant in terms of what I have found to be the causative connexion. I find that a reasonable extension in time and space would cease once Mr Mustica had left the secure staff car park and entered the airport road, which can be classified as the public street, in this context, because while that road may be on airport-owned land, there is no evidence before me that there is not untrammelled public access to that road, so he would then be in a place where (per Weaver) the public have a right of access such as the public street.
I consider Mr Ternes’ submission that the Tribunal should find Mr Mustica ‘left work’ when he departed the secure area in Terminal 2 is too restrictive.
My finding is consistent with Beach J’s conclusions in Williams, that a fall in the foyer of a building when an employee is arriving at work is compensable, even though the foyer itself may be a public area and not in the control of the employer, because the employee was in the place for the purposes of her employment and not as an ordinary member of the public. This approach is also in harmony with the old authority in Longhurst, and in the approach outlined by Lord Goff of Chieveley and cited in the recent case of Mannall, referred to above.
I am satisfied of the fact that, between the time he completed his shift and signed off in the secure area in Terminal 2 and left the secure car park, although Mr Mustica had to pass through a number of public areas of the terminal buildings and the public concourse, he was going directly from his workplace to his vehicle, which was parked where his employer had authorised him to park it, in an area not open to the public and where Mr Mustica did not have a right to be otherwise than through his employment (per Weaver).
The particular facts and circumstances in this case are important. I make the observation that if, for example, there was evidence that Mr Mustica had gone and done something else for, as Murphy J put it in Bowden, some private purpose, after signing out that day, such as, for instance, shopping or going to a café or bar at the airport, and then sustained an injury, there may be an argument that the chain of causation had been broken (per Speechley).
Equally, consistent with the authorities, if Mr Mustica had been undertaking some errand for his employer in the process of getting to his car and leaving for home when his injury occurred, I consider that would be incidental to his employment and the injury compensable.
The Tribunal makes the point that the so-called doctrine of notional extension, whereby the way a person may come to and leave his or her work and that journey may be reasonably in the contemplation of both parties as part of the employment contract, must have reasonable limitations. Otherwise, it would seem that the Parliament’s intention in 2007 (see Safety, Rehabilitation and Compensation Amendment Act 2007 (Cth)) to remove the so-called ‘journey’ provisions from the Act, whereby injury sustained between an employee’s residence and usual place of work at the start and end of regular employment was previously regarded as being compensable, would be in danger of being subverted.
For completeness, the Tribunal notes that this is not an ‘interval case’. It was not submitted by Mr Horner that Mr Mustica’s injury occurred in a normal break in employment. The Tribunal notes that had Mr Mustica sustained his injury during other activities he may have undertaken that day, for instance, when he was at Mount Waverley checking on prawn imports, or using a staircase in the terminal building during his shift, or, if, say, he had sustained the injury when inspecting an aircraft on the apron, the causal connexion between injury and employment would have been clear.
The Tribunal finds that the connexion between Mr Mustica’s injury being incidental to his employment is found in the sense described by Dixon J in Henderson: the Applicant was reasonably authorized by his employer to use the secure staff car park, and he was going from his place of work to that place in the course of egress from his employment.
Therefore, the answers to the questions agreed by parties as before the Tribunal are as follows. The Tribunal finds that Mr Mustica’s condition arose out of his employment. The Tribunal finds that Mr Mustica sustained his injury within what can be regarded as the reasonable boundaries of his workplace, and not on his journey home to his residence.
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.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for decision herein of Senior Member D. J. Morris
.....[sgd]................................................
Associate
Dated: 17 December 2019
Date of hearing: 28 June 2019
Date final materials received: 7 October 2019 Solicitor for the Applicant: Mr Rob Heazlewood
Zaparas Lawyers
Counsel for the Applicant: Mr Nicholas Horner Solicitor for the Respondent: Ms Melissa Koutoukidis
HWL Ebsworth Lawyers
Counsel for the Respondent: Mr Ray Ternes
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