FEDERAL COURT OF AUSTRALIA
PVYW v Comcare (No 2) [2012] FCA 395
Citation: PVYW v Comcare (No 2) [2012] FCA 395 Appeal from: Appeal from Administrative Appeals Tribunal Parties: PVYW v COMCARE File number: NSD 1761 of 2010 Judge: NICHOLAS J Date of judgment: 19 April 2012 Catchwords: INDUSTRIAL LAW – where employee injured during overnight stay in motel room booked by employer for employee – where overnight stay constituted interval or interlude within overall period or episode of work – where injuries sustained while employee engaged in lawful sexual activity – whether interval or interlude interrupted by reason of applicant engaging in such activity – where no allegation of misconduct against employee – whether applicant suffered injuries in the course of employment
ADMINISTRATIVE LAW – whether open to Administrative Appeals Tribunal to find that the applicant did not suffer injuries in the course of her employment –whether Tribunal’s decision should be set-aside
Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 6, 14, 68
Workers Compensation Act 1987 (NSW) s 9Cases cited: Comcare v Mather (1995) 56 FCR 456
Comcare v McCallum (1994) 49 FCR 199
Danvers v Commissioner for Railways (N.S.W.) (1969) 122 CLR 529
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
Henderson v Commissioner of Railways (W.A.) (1937) 58 CLR 281
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Re Crook and Comcare [2001] AATA 352
The Commonwealth v Oliver (1962) 107 CLR 353
Watson v Qantas Airways Limited [2009] NSWCA 322, (2009) 75 NSWLR 539
Whittingham v Commissioner of Railways (W.A.) (1931) 46 CLR 22Date of hearing: 27 July 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 56 Counsel for the Applicant: Mr L T Grey Solicitor for the Applicant: Pappas, J. – Attorney Counsel for the Respondent: Mr A Berger Solicitor for the Respondent: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1761 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: PVYW
ApplicantAND: COMCARE
Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
19 APRIL 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal (the Tribunal) dated 26 November 2010 be set aside.
THE COURT DECLARES:
2.The injuries suffered by the applicant on 26 November 2007 were suffered by her in the course of her employment.
THE COURT FURTHER ORDERS THAT:
3.The respondent pay the applicant’s costs of this appeal and the applicant’s costs of the proceedings before the Tribunal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1761 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: PVYW
ApplicantAND: COMCARE
Respondent
JUDGE:
NICHOLAS J
DATE:
19 APRIL 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal on a question of law from the decision of the Administrative Appeals Tribunal…
Continue reading PVYW v Comcare (No 2)
Sign in free to access the full text
- AGLC
- PVYW v Comcare (No 2) [2012] FCA 395
- Case
- [2012] FCA 395
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining if the Tribunal was correct in finding that PVYW did not suffer her injuries in the course of employment and if the Tribunal's decision should be set aside. PVYW argued that it was not open to the Tribunal to find that she did not suffer her injuries in the course of her employment and contested certain factual findings made by the Tribunal. The court examined the Tribunal's findings that the recreational activity engaged in by PVYW during the overnight stay was not countenanced by her employer and that sexual activity was not an ordinary incident of such a stay. The court found that there was insufficient evidence to support the Tribunal's conclusion that the recreational activity was not countenanced by the employer and questioned the generality of the finding that sexual activity was out of the ordinary.
The court ultimately ruled that the Tribunal's decision was flawed and set it aside. It declared that PVYW's injuries were indeed suffered in the course of her employment. The court ordered that the respondent, Comcare, pay the applicant's costs of the appeal and the costs of the proceedings before the Tribunal. The decision underscored the importance of clear evidence and proper legal reasoning in administrative law matters concerning employment injuries.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal (the Tribunal) dated 26 November 2010 be set aside.
THE COURT DECLARES:
2. The injuries suffered by the applicant on 26 November 2007 were suffered by her in the course of her employment.
THE COURT FURTHER ORDERS THAT:
3. The respondent pay the applicant’s costs of this appeal and the applicant’s costs of the proceedings before the Tribunal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The applicant made submissions to the effect that it was not open to the Tribunal on the facts of this case to find that the applicant did not suffer her injuries in the course of her employment. The applicant also challenged a number of factual findings made by the Tribunal on the basis that they were not open on the evidence. I shall refer to these in more detail shortly. The respondent did not accept any of the applicant’s criticisms of the Tribunal’s reasons for decision which were embraced by the respondent as correct in point of fact and law. It was the respondent’s case that the Tribunal’s decision was correct for the reasons stated. CONSIDERATION There are two closely related factual findings made by the Tribunal that were challenged by the applicant in her notice of appeal on the basis that they were not open on the evidence. It is convenient to consider the applicant’s challenge to these findings before considering her main argument. The first of the challenged findings (at para [50]) was that the recreational activity engaged in by the applicant during the evening in question was not countenanced by her employer. The word “countenance” in the present context means to “support or approve” but may also mean to “tolerate or permit”. Either way, I do not think there was any evidence before the Tribunal (whether by way of agreed facts or otherwise) which enabled the Tribunal to make a positive finding that the recreational activity engaged in by the applicant was not countenanced by her employer. The second of the challenged findings (at para [50]) was that sexual activity was not an ordinary incident of an overnight stay in a motel room on a business trip. It may be that it was open to the Tribunal to make this finding on the basis of what is sometimes referred to as its “knowledge of human affairs”: see, for example, Cross on Evidence, 8th Aust ed (2010) at para [3200]. But if the Tribunal’s finding is understood as meaning that an employer would have no reason to expect that an employee might engage in lawful sexual activity during the course of such a stay because it rarely occurs or is somehow “out of the ordinary” then I have real doubt as to whether such a finding was open to the Tribunal. I think the vice in the finding lies in its generality. In any event, I do not think it is necessary for me to resolve this particular issue for the purposes of deciding this appeal. The starting point in the applicant’s argument in support of the appeal is the joint judgment in Hatzimanolis. In that case, the appellant worked at Mount Newman, a remote location in Western Australia. Before he left to go there he was told by his employer (ANI) that he would be required to work Mondays to Fridays for 10 hours per day, with the possibility that he might also have to work on Sundays. The appellant’s accommodation and living expenses were to be paid for by ANI which also provided vehicles for ground transportation. The appellant was told that he and his fellow employees might have the opportunity to make trips to surrounding areas. The appellant’s supervisor organised one such trip to Wittenoom Gorge which he encouraged the appellant to go on. The appellant was injured when a vehicle supplied by the employer overturned during the course of the trip.