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…
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- AGLC
- Mustica and Comcare (Compensation) [2019] AATA 5426
- Case
- [2019] AATA 5426
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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.