Peet v Workers Rehabilitation & Compensation Corp

[1997] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A43 of 1996

B e t w e e n -

DAVID JOHN PEET

Applicant

and

WORKERS REHABILITATION AND COMPENSATION CORPORATION (YORK CIVIL PTY LTD)

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 MAY 1997, AT 10.53 AM

Copyright in the High Court of Australia

MR M.W. SAIES:   May it please the Court, I appear for the applicant.  (instructed by Palios Meegan and Nicholson)

MR S. WALSH, QC:   May it please the Court, I appear for the respondent.  (instructed by Piper Alderman)

DAWSON J:   Yes, Mr Sais.

MR SAIES:   Your Honours, although this application arises in the context of State legislation, in my submission, it gives rise to important points of law regarding the interpretation of the expression “arising out of or in the course of employment”.  That is an expression which is common to all State workers’ compensation schemes.  Certainly, if those precise words are not used, the equivalent of those words are used in other schemes.  This case does not concern, of course, the interpretation of “arising out of employment”, it concerns the interpretation of the expression “in the course of employment”.

DAWSON J:   You are not contesting the first part of the decision that the medical certificate was obtained in connection with a compensable disability?

MR SAIES:   We are not contesting that.  That is not an issue in terms of this application.

KIRBY J:   Why can it not arise out of the employment, for you to go to a doctor to clarify whether you have a compensation right?  Why do you so readily abandon the causal relationship?

MR SAIES:   Your Honour, it really lies in the extent to which there is a causal connection and I suppose I do not readily abandon it, but it is a situation here where there is no ‑ ‑ ‑

KIRBY J:   Why, in this day and age in Australia, where there are universal compensation schemes, people go along and they may or may not get compensation, does it not arise out of the employment?  It seems to me in some ways it is easier to put it into that category than in the course of.  It is something that arises out of being employed, that you have an accident or you have an injury and you claim compensation and you may or may not get it, but it is incidental to that for you to go along and have your medical, which is what your client was doing.

MR SAIES:   Yes.  I agree with the last part of what your Honour says, that it is incidental to.  In my submission, it can therefore more readily be characterised as arising in the course of because the authorities make it clear ‑ ‑ ‑

KIRBY J:   Do you or do you not abandon “out of”?  That is how you opened and I just did not understand that.

MR SAIES:   Yes.  We do, in view of the position taken by the Full Court ‑ ‑ ‑

KIRBY J:   But you are in the High Court of Australia now.  You are not in the Full Court.

MR SAIES:   Yes.  Your Honour, what I say is, perhaps if I can put it this way:  I do not abandon it, but what I say is if the causal connection is made out in the way that your Honour suggests, then it necessarily makes out the other limb of the criteria, that is, in the course of employment.  In other words, what your Honour is suggesting to me is that it is an incident of employment and my response is quite simply, if it is an incident of employment, then it necessarily arises in the course of employment, even if it was to also arise out of the employment.

TOOHEY J:   But you still have this problem, I think, Mr Saies, however you put it, that it really is an application of fairly well established principle to particular facts, is it not?

MR SAIES:   Yes, I accept that, your Honour.  The basis of this application, though, is to ask this Court to give consideration to the meaning of “in the course of employment” and for that matter, in view of what your Honour Justice Kirby put to me, the wider expression “arising out of or in the course of employment” in the context of a case where there is no temporal connection and that is what is unique about this case, unlike Hatzimanolas

KIRBY J:   It was not suggested, as I understand it, that this was a fraudulent claim by your client.  It was just a medical question as to whether he could link it up to his employment or not.  It is an everyday question.  Hundreds of these cases are heard every day in this country, but the problem I have is that your statute, as I understand it, did originally cover this case and then the statute was amended to exclude this case, as you have got to by the statute show that it was a compensable injury, and the issue then is whether, if Parliament has, as it were, specifically turned its attention to this question, that in a way expels the common law.

MR SAIES:   Your Honour, I do not think the statute ever expressly made this scenario compensable.  It was a case where there is a provision relating to attendances or there was a provision relating to attendances in respect of a compensable disability, but there was nothing about this legislation at any stage that expressly made the attendance other than in respect of a compensable disability compensable if an injury occurred in the course of that attendance.

DAWSON J:   But this is the point you are not pursuing.

MR SAIES:   Yes, that is the point we are not pursuing and what I am suggesting to your Honour Justice Kirby is that this has not been expressly compensable under a specific provision in the South Australian Act.

KIRBY J:   You say that does not exclude the generality arising out of “in the course of”?

MR SAIES:   Yes.

KIRBY J:   But what is your answer again to Justice Toohey’s point that the Court has many times, including recently, looked at that well‑worn phrase?  What new light could we throw upon it, except in this very particular factual circumstance of this case?

MR SAIES:   It is a well‑worn phrase and I accept that.

KIRBY J:   There is probably no phrase in the lexicon that has been the subject of so much litigation in this country and in other countries.  So why do we have to revisit it?

MR SAIES:   My point is this, your Honour, that although it is a well‑worn phrase, it has only been worn down in the context of considering factual situations involving a close temporal connection with employment and we simply do not have that here.  I cannot maintain that there is anything in the temporal relationship between the injury in this case and the employment which would justify a finding that this injury was compensable.  That has not been the subject of discussion in the authorities and does not involve any discussion in the Hatzimanolas Case or the cases referred to in the Hatzimanolas Case.

This is something of a unique situation, I accept, and a unique factual scenario, but it is a factual scenario which is open on any of the workers’ compensation schemes in this country and what I say is that, quite apart from the special leave point, there are important considerations of policy as to whether a Parliament could ever have intended this scenario to leave someone without coverage under the Act.  In my submission, the degree of compulsion associated with section 53 - and perhaps if I could take your Honours now to the book of authorities - at page 100 of the book of authorities your Honours will see section 53 of the current Act which is in ‑ ‑ ‑

KIRBY J:   What is the significance of this case for your client?  Was he seriously injured when he fell over in the hospital or the rooms or is it ‑ ‑ ‑

MR SAIES:   He sustained a knee injury which has required arthroscopies, as I recall, and he is still off work, as I recall, principally because of the knee injury rather than the chest pain.  So there is significance in terms of what has occurred, but section 53, which you will see at page 100, is the terms of section 53 in the current legislation, which is no different from section 53 as it was in October 1992, sets out the regime which the compensating authority can undertake and you will see that in subsections (2) and (3) there is a degree of compulsion about attending an examination arranged by the Corporation.

We say that is important in terms of policy considerations.  This is a case where the worker to a large extent did not have much choice about whether he could attend the medico-legal examination at a time when his original claim had not been rejected as compensable by the Corporation. We say that that is important in the context of this case because medico-legal examinations can involve investigations which, even if they cannot be properly characterised as invasive, certainly are bordering on evasive and, for example ‑ ‑ ‑

KIRBY J:   Is not a problem with your proposition that where Parliament has addressed itself specifically to compensability of an injury arising out of a medical examination and where it is required that in such a case you have to show that it turns out to be a compensable injury, that if you are asking the Court to, as it were, get the general words “arising out of or in the course of the employment” to do the work, then you just do not need the special provision.  Why bother having the special provision?  You do not need it, because you can always bring it within the rubric of “arising out of or in the course of”, and that is perhaps an argument for reading that expression down, in this particular case, to which Parliament has specifically turned its attention.

MR SAIES:   Your Honour, the need for the special provision arises, in my submission, where, for example, a worker attends at the request of his solicitors.  So there is no compulsion where the worker, himself or herself, elects to be further examined for the purposes of pursuing a claim or, indeed, for treatment in respect of a compensable disability.  I say that that would be covered by the special provision but not covered by the general provision.  It is the degree of compulsion in this case and what I say is that simply because the special provision provides something of a code for compensable disabilities for claims in respect of compensable disabilities, as that term was interpreted by the Full Court, does not mean there is a code excluding non-compensable disabilities, that those non‑compensable ‑ ‑ ‑

KIRBY J:   Have you done an analysis of the Australian statutes in the other jurisdictions that show that this is a live issue in those jurisdictions?

MR SAIES:   I say that there is certainly powers in the other State workers’ compensation schemes to require a worker to attend an examination like this and that as far as I can tell, it is only New South Wales where it is at the express request of the employer.  I say it is not a case here where the failure of Parliament to have a provision referring to the request of the employer expressly makes any difference.  It is not as if the respective State legislatures meant to discriminate between a request by an employer on the one hand, and a request by the compensating authorities on the other. 

In my submission, the general test of “arising out of or in the course of employment” is the threshold test which needs to be met and should not, in any way, be fettered by whether there is a specific provision in the legislation which enables an employer to make the direction or the compensating authority to make the direction.  Indeed, the previous legislation in South Australia - and I referred your Honours to that in my outline of argument, and that appears in the book of authorities, your Honours, at page 91 - section 28(1) of the Workmens’ Compensation Act 1971 in this State, the predecessor of the current Act, expressly provides for an employer requiring the worker to be medically examined.  I say there should be no distinction drawn between the mechanisms under that Act and the mechanisms under the current Act.

Indeed, I have referred your Honours, in my outline of argument, to the distinction that would arguably arise under this current Act in respect of non-exempt employers versus exempt employers.  In terms of the current Act, there is power in an exempt employer to investigate and determine claims.  They take on the claims management themselves and what I say is, it would give rise to a clear distinction, where an exempt employer, perhaps pursuant to section 53 under this current Act, and directs a worker to attend a medico‑legal examination, as against a non‑exempt employer - the employment by a non‑exempt employer, where the statutory Corporation would be making the directive.

Your Honour, in my submission, the learned Chief Justice erred in attaching the criteria to whether there was a link with the duties of employment.  In my submission, this is a case where it is sufficient to have a link with employment of the sort that the learned Chief Justice refers to in his judgement.

DAWSON J:   But that is a question of fact, is it not, Mr Saies?

MR SAIES:   Well, it is.  But the ultimate result, of course, is something which can be characterised as a question of law - the principles to be applied.  I say that there is an important principle here in terms of an analysis of the expression “in the course of employment” where there is not the temporal connection.  This is, in my submission, a good vehicle to consider that, because there was some ‑ ‑ ‑

KIRBY J:   So, it comes down to this; that you accept the principle stated by the Court in Hatzimanolis, you say that that is the correct principle, and that what has happened is that the Full Court has mistakenly applied that principle.

MR SAIES:   The Full Court has applied the Hatzimanolis principle, but, of course, Hatzimanolis really dealt with a temporal connection in employment.

KIRBY J:   But that is the one you are urging.  You are urging “in the course of”.  You disclaimed “arising out of” and, therefore, Hatzimanolis is the key to the answer to your problem, on your argument.

MR SAIES:   Well, it is, to some extent, your Honour.  Perhaps if I just, at the risk of retracing my answer to your Honour’s earlier question - what I say is that Hatzimanolis does not provide the full answer.  What it provides is an indication that this Court is prepared to expand the notion of the expression “in the course of employment”, but that has only been expanded in the context of cases where there is a temporal connection. 

What I say here is that some consideration needs to be given by this Court, and some guidance given to the courts of the respective States, to the position where there is no such temporal connection; where there is simply a connection by virtue of the Workers’ Compensation Scheme and the Workers’ Compensation Act.That is something that potentially can arise in

every State of Australia, although, as I indicated before, perhaps New South Wales stands in a marginally different position.

At the end of the day, what I say to your Honours in terms of the degree of flexibility - and to quote from Hatzimanolis an understanding of contemporary practices of workers and employers in terms of what is incidental to employment - what I say to your Honours is that, in effect, when a worker takes up employment, he does so not only as a worker in an employment relationship with his employer, but he takes up that employment as a worker for the purposes of industrial relations legislation and, in the context of an unfair dismissal claim, he takes up employment as a worker for the purposes of occupational health and safety legislation and, finally, he takes up that employment as a worker for the purposes of workers’ compensation legislation. 

It is somewhat artificial to really distinguish the concept of a contract of employment from all the other incidents of employment that I have just referred to that are necessarily part of the obligations that he owes to his employer and, indeed, from those respective pieces of legislation, the obligation that the employer in turn owes to the worker.  This is the sort of distinction - what I say is an artificial distinction - that his Honour Chief Justice Doyle made in his judgment, and a distinction that is not justified on contemporary industrial practices.  If the Court pleases.

DAWSON J:   Thank you, Mr Saies.  The Court need not trouble you, Mr Walsh. 

The decision of the court below of which the applicant complains depends upon the application of established principle to the particular facts of the case and raises no point of special importance which would warrant the grant of special leave to appeal.  Special leave to appeal is accordingly refused.

MR WALSH:   If the Court pleases, I apply for costs.

MR SAIES:   Your Honours, I cannot put anything further than what is contained in Part 5 of the outline of argument in response to that.

DAWSON J:   The application will be refused with costs.

AT 11.14 AM THE MATTER WAS CONCLUDED