PRIETO Applicant And COMCARE

[2010] AATA 546

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/1423

DIVISION		)
Re		DANIELLE PRIETO

Applicant

And COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date 22 July 2010

PlaceCanberra

Decision  The decision under review is affirmed.

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

Professor R. Creyke, Senior Member

CATCHWORDS - COMPENSATION – injury received playing in SNOG soccer tournament – whether the activity was associated with employment – activity supported by agency’s social club, not agency – activity on weekend, not at place of work, nor part of work duties - objective test - decision under review affirmed

Commonwealth v Carter (1965) 7 FLR 223;

Commonwealth v Lyon (1979) 24 ALR 300

Commonwealth v Oliver (1962) 107 CLR 353

Commonwealth v Pearson [1982] unreported, 23 February 1982

Gregory v Comcare (1997) 72 FCR 196

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Kavanagh v Commonwealth (1960) 103 CLR 547

Mahon v Air New Zealand [1984] AC 808

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] A QB 456

Re Clark an Military Rehabilitation and Compensation Commission [2005] AATA 436

Re Kelly v Australian Telecommunications Corporation [1991] AATA 720

Re La Palombara and Commonwealth (1985) 6 ALD 526

Re La Palombana and Commonwealth [1984] AAT No 1662

Re Lowth and Comcare (2000) 64 ALD 747

Re Staddon and Commonwealth (1984) 5 ALD 253

Re Strang v Commonwealth [1984] AAT No 1395

Sue v Hill (1999) 199 CLR 462

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5, 5A, 5A(1), 6(1), 6(1)(c), 14

REASONS FOR DECISION

1.      Ms Danielle Prieto was employed in 2008 by the Australian National Audit Office (ANAO).  On 7 September 2008 she injured her right knee while playing soccer.

2.      The soccer game took place on a weekend, and was not at her place of work, nor part of her work duties, and was not organised by her employer.

3.      The game was part of a one day soccer tournament organised by the Social Network of Graduates (SNoG) in which teams from Commonwealth agencies competed.

4.      On 22 November 2008 Comcare denied liability for the injury on the basis that the injury did not arise out of or in the course of Ms Prieto’s employment.  That decision was affirmed on reconsideration on 15 December 2008. 

5.      On 8 April 2009 Ms Prieto sought review by the Tribunal.

Legislation

6.      The following are the relevant provisions of the Act.

7. Section 5A(1) defines 'injury' to mean: ...

(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. ...

8. Section 6(1) of the Act provides:

(1) Without limiting the circumstance in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment,…