Ramsay Health Care Australia Pty Ltd v Wyatt
[2017] WADC 145
•10 NOVEMBER 2017
RAMSAY HEALTH CARE AUSTRALIA PTY LTD -v- WYATT [2017] WADC 145
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 145 | |
| Case No: | APP:107/2016 | 31 MAY 2017 | |
| Coram: | BIRMINGHAM QC DCJ | 10/11/17 | |
| PERTH | |||
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Respondent's application dismissed | ||
| PDF Version |
| Parties: | RAMSAY HEALTH CARE AUSTRALIA PTY LTD KAREN WYATT |
Catchwords: | Appeal Workers' Compensation and Injury Management Act 1981 Employee suffering injury on rostered days off Whether injury suffered in the course of her employment Whether arbitrator identified and applied correct test Error of law established |
Legislation: | Workers' Compensation and Injury Management Act 1981 |
Case References: | Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Catholic Education Office of WA v Granitto [2012] WASCA 266 Comcare v PVYW [2013] HCA 41 Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
KAREN WYATT
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR NUNN
Citation : A16460
Catchwords:
Appeal - Workers' Compensation and Injury Management Act 1981 - Employee suffering injury on rostered days off - Whether injury suffered in the course of her employment - Whether arbitrator identified and applied correct test - Error of law established
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Leave to appeal granted
Appeal allowed
Respondent's application dismissed
Representation:
Counsel:
Appellant : Mr G R Hancy
Respondent : Mr M J Lurey
Solicitors:
Appellant : Hall & Wilcox
Respondent : Chapmans
Case(s) referred to in judgment(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Comcare v PVYW [2013] HCA 41
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361
Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222
- BIRMINGHAM QC DCJ:
Background
1 The respondent was employed by the appellant as a nurse at the Peel Health Campus. The respondent was not rostered to work during the period 5 - 9 April 2014.
2 On 8 April 2014 (on a rostered day off), the respondent attended the hospital to complete a form that had been requested of her previously. It is accepted that her attendance did not relate to the nursing duties for which she was employed. As the respondent went to sit on a chair proximate to the computer she intended to use, the respondent missed the chair, landed heavily on her buttocks on the floor and suffered injury. Thereafter, the respondent commenced proceedings against her employer at WorkCover for weekly payments of compensation and statutory expenses. The respondent claimed that she had suffered an 'injury' as defined in s 5(a) of the definition of injury in s 5 of the Workers' Compensation and Injury Management Act 1981 (the Act), that is to say, 'a personal injury by accident arising out of or in the course of her employment'.
3 The appellant denied liability. The appellant disputed the fact of the injury and further maintained that the respondent's injury did not arise out of or in the course of her employment.
4 The respondent's application was heard by a sessional arbitrator over six days during a six-month period from April to October 2015 and thereafter his decision was reserved. The arbitrator's decision was not forthcoming prior to his appointment ceasing. In September 2016 the Registrar of the Arbitration Service allocated the matter to Arbitrator Nunn to determine the application from the transcript of proceedings and the evidence adduced before the sessional arbitrator.
5 On 29 November 2016, Arbitrator Nunn found for the respondent and ordered that the appellant pay the respondent weekly payments of compensation for total incapacity for the period from 8 April 2014 to 12 November 2014 and from 12 to 22 January 2015. Whilst the arbitrator was not satisfied that the respondent had suffered the injury as alleged by her, he found that she had suffered 'injury' as defined in s 5(d) of the definition in s 5, that is to say, that the respondent's employment had contributed to the acceleration of a pre-existing disease – a case not generally articulated or pursued by the respondent.
6 The appellant appealed from that decision, pursuant to s 247(1) of the Act, by notice on 23 December 2016.
7 On 28 December 2016 the respondent in this appeal also appealed the arbitrator's decision (APP 110 of 2016) on the grounds that, inter alia, she had been denied procedural fairness insofar as the matter was not determined by the sessional arbitrator who had heard the evidence and, further, erred in his assessment of her incapacity.
8 On 4 April 2017 Deputy Registrar Hewitt ordered that this appeal be heard together with APP 110 of 2016.
9 At the commencement of the hearing of the appeals, counsel for the respondent informed the court that the respondent (the appellant in APP 110 of 2016) abandoned that ground alleging an absence of procedural fairness in the conduct of the hearing and thereafter confined her appeal to the findings made relating to the injury suffered by her. In the light of that development, it being accepted that if the appellant was successful in this appeal any determination of the remaining issues in APP 110 of 2016 would be otiose, APP 107 of 2016 was to be heard and determined first.
10 Section 247(1) relevantly provides that a party may, with leave, appeal to the District Court against an arbitrator's written decision. The court is not to grant leave unless a question of law is involved.
11 There is one ground of appeal:
The learned arbitrator erred in law in finding that the respondent's fall occurred 'in the course of the employment' and that 'employment' was a contributing factor to the aggravation of a pre-existing disease for the purpose of the definition of 'injury' under s5 of the WCIMA in that he:
(a) Articulated an incorrect test derived from Overstone v Fire & Emergency Services, C4-2009, 11 February 2009, namely whether a worker's act was reasonably required or authorised to be done in order to carry out his actual duties – which test was not applicable to a case of alleged injury occurring outside ordinary work hours and was not supported by the principles articulated by the High Court in ComCare v PVYW[2013] HCA 41; (2013) 250 CLR 246 and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473;
(b) Failed to hold that where the employer did not require, induce, encourage, expect or authorise the employee to perform an activity at the time and place, outside ordinary work hours, where the activity occurred that activity and any resulting aggravation of a pre-existing disease was not 'in the course of the employment' and not 'employment' for the purpose of deciding whether there was an 'injury' under s5of the WCIMA;
(c) Failed to hold that the conduct of the respondent by attempting to sit in a chair outside ordinary work hours was neither 'in the course of the employment' nor 'employment' and that the respondent's intention of using a computer in the future to complete the graduate evaluation form was irrelevant.
12 If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17].
13 An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17; Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] – [57].
14 Where an appeal lies 'on a question of law', the subject matter of the appeal is the question of law. If a question raised by the appellant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law: Atanasoska v Inghams Enterprises Pty Ltd [21] (Buss JA); Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 [53] (Buss JA); Catholic Education Office of WA v Granitto [53] – [57] (Murphy JA).
15 Where leave is granted, the court must conduct a 'real review'. For the purposes of such a review, the appellant must provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it: Pacific Industrial v Jakovljevic [20], [26]; Catholic Education Office of WA v Granitto [57].
16 It is convenient to deal with the application for leave and the appeal at the same time – the question for leave to be dealt with after considering the merits of the grounds of appeal.
17 The appellant does not take issue in this appeal that the arbitrator decided the case outside the ambit of the case originally formulated by the respondent.
18 The single issue for the appeal is whether the factual material placed before the arbitrator compelled a finding that the respondent's injury was in fact suffered in the course of her employment, notwithstanding that she had not been rostered to work on that day and had attended her place of work of her own volition. The appellant says that in making that determination, the arbitrator applied the incorrect test as to what constituted an injury in the course of employment.
19 The appellant says that for the purposes of the definitions of 'injury' under s 5 of the Act, the employer's place of business is not a 'workplace' for an employee outside work hours and that 'employment' or 'course of the employment' is not created by the employee choosing to attend that place outside working hours to carry out a task there, where an employer has not required, induced, encouraged, expected or authorised the employee to perform a task outside work hours at that particular place.
20 The appellant says further, that an employee's intention or purpose for attending, even if to achieve an outcome that the employee may be required to fulfil at a different time or in a different way, is not relevant. An employee cannot, through voluntary action, choice, intention or purpose, impose on an employer a relationship that is employment or course of employment for the purposes of workers' compensation laws. The relevant matters for consideration are the employment relationship and work duties created by the contract of employment and the conduct and perspective of the employer relative to that employee.
21 Having reviewed the evidence, the arbitrator made the following factual findings [283]:
Having regard to the evidence before me I arrive at the following findings of fact relevant to Mrs Wyatt's attendance at the hospital on 8 April 2014 (incorporating facts agreed by the parties).
(a) As part of Mrs Wyatt's graduate programme she was required to complete a graduate programme evaluation form. The form was due to be completed by 11 April 2014.
(b) The form should have been completed around January 2014 however the hospital was changing to a system of electronic forms and this was the first time the forms had been emailed to people.
(c) The hospital preferred the form to be returned electronically but it could still be completed in hard copy.
(d) The form was emailed to Mrs Wyatt in early March 2014. An email reminding Mrs Wyatt to complete the form was set a week later.
(e) Mrs Wyatt received an email reminder on 3 April 2014 to return the form by 11 April 2014. Part of the email was emphasised in bold and italic font. Ms Cupples, the manager of Ramsay's training department, was copied in on that email.
(f) The form is not complex. (Although I find this as a fact the weight of this fact is not overly significant for various reasons discussed below).
(g) It was possible for Mrs Wyatt to access the form through the hospital intranet, known as Sharepoint. This was accessible from any computer in the hospital, including the computers at the Cove ward nurses' station.
(h) Mrs Wyatt could not type onto the file from her home computer as Ms Hannah had requested. She advised Ms Hannah of this by email on 5 April 2014.
(i) Ms Hannah suggested (by email) that she contact Julie Blackwell (at the LDC) for assistance.
(j) Mrs Wyatt was not expressly required or requested to attend the hospital and complete the form on 8 April 2014.
(k) Mrs Wyatt felt some subjective pressure to complete the form.
(l) Although Ms Hannah suggested Mrs Wyatt contact Ms Blackwell by phone there is nothing in Ms Hannah's email precluding Mrs Wyatt seeking Ms Blackwell's help in person.
(m) Mrs Wyatt was out shopping on 8 April 2014 and decided to 'pop in' and complete the form.
(n) Mrs Wyatt had groceries, including ice cream, in the car.
(o) Mrs Wyatt attended the LDC and told Ms Blackwell that she was there to complete her graduate evaluation form but that she had had trouble accessing this.
(p) Ms Cupples told Ms Blackwell how to access the form and Ms Blackwell accessed the form on her computer.
(q) No-one else was present in the LDC at the time and there were computers available for Mrs Wyatt to use at the LDC.
(r) Mrs Wyatt did not use a computer at the LDC but proceeded to the Cove ward nurses' station.
(s) Mrs Wyatt enquired of Sue McCarthy and Sue O'Brien to seek permission to use a computer.
(t) This was not necessary but was a courtesy.
(u) Mrs Wyatt did not tell anyone she was there for a performance appraisal or meeting with Sue McCarthy. Mrs Wyatt did state that she was there to perform her 'evaluation'.
(v) No policy prohibited Mrs Wyatt from attending the nurses' station on her day off and other nurses had come in on their day off to attend to various tasks such as checking rosters and attending the ward to use the toilets when attending compulsory education on their rostered days off.
(w) Mrs Wyatt attended the hospital (specifically the LDC and the nurses' station) on her day off for the purpose of completing her graduate evaluation form although I am unable to determine why Mrs Wyatt did not complete the form at the LDC.
(x) Although I consider Mrs Wyatt to be an inaccurate historian and a generally unreliable witness (and in some places has given evidence that adversely impacts on her credibility as a witness) I am unable to find that in relation to her reasons for attending the hospital on 8 April 2014 that Mrs Wyatt had been deceitful or attended with the intention of staging her fall or faking an injury.
(y) Mrs Wyatt was not on an 'interval' in an overall period of employment. 8 April 2014 was a period between two discrete periods of employment for Mrs Wyatt, which despite being on a roster, started and ended with the arrival at work and commencement and cessation of her rostered hours and departure from work.
22 The above findings are not challenged by the appellant in the appeal.
23 The arbitrator summarised his conclusions on the respondent's application as follows [24] – [31]:
I am satisfied that Mrs Wyatt's fall was not faked or staged and was in fact an 'accident'.
I am not persuaded that Mrs Wyatt has led sufficient evidence to prove that she suffered an internal physiological change consistent with having suffered a personal injury by accident. Accordingly, it is not strictly necessary for me to consider whether Mrs Wyatt's injury was an injury arising out of or in the course of her employment.
However, I have considered whether Mrs Wyatt's injury was an injury arising out of or in the course of her employment at some length for three reasons.
(a) Firstly, if I am wrong in my conclusion that Mrs Wyatt has not led sufficient evidence to prove that she suffered a personal injury by accident it may be of assistance to the parties (and any appeal court) to have my reasons on this argument exposed.
(b) Secondly, as this aspect of Mrs Wyatt's case was specifically argued at length by both parties it is, in my view, incumbent on me to address this notwithstanding my conclusion that I am unable to find that Mrs Wyatt has suffered a personal injury by accident.
(c) Thirdly, it is in any event necessary to consider the closely related issue of the nature of Mrs Wyatt's employment for the purpose of properly determining her alternate argument that she has suffered a compensable injury under limb 'd' of the definition of injury.
Notwithstanding my conclusion that Mrs Wyatt has not led sufficient evidence to prove that she has suffered a personal injury by accident I consider that her attendance at Peel Health Campus on 8 April 2014 was an attendance that was in the course of her employment even though Mrs Wyatt was not rostered to work that day. Accordingly, if Mrs Wyatt has in fact suffered a personal injury by accident (which I am unable to conclude on the evidence before me) I consider this would be an injury that arose in the course of her employment.
Although I remain ignorant of exactly what L5 bilateral pars defect or spondylolytic spondylolisthesis may be I am satisfied that these are conditions captured by the broad definitions of 'disease' provided for by the Act and that Mrs Wyatt suffered from these pre-existing diseases prior to 8 April 2014.
Although further evidence of the s 5(5) factors may have supported a more definitive conclusion I am satisfied that it is more likely than not that Mrs Wyatt's employment, namely the fall which occurred when attending the hospital for a purpose reasonably incidental to her employment, rendered these diseases symptomatic thereby significantly contributing to the aggravation of these pre-existing diseases.
I am satisfied that Mrs Wyatt has experienced some periods of total incapacity as a result of her injury however I am not persuaded that Mrs Wyatt has led sufficient evidence to permit a finding that she is presently totally incapacitated nor has she been totally incapacitated for the entire period from 8 April 2014 onwards.
Mrs Wyatt has led insufficient evidence as to the reasonableness of the expenses claimed and I am unable to award any measure of compensation to her for statutory expenses.
24 The arbitrator found that the respondent's injury 'arose in the course of her employment' and that the respondent suffered her injury when attending the hospital for a purpose 'reasonably incidental' to her employment.
25 For the purposes of this appeal, the whole of the reasons must be considered in context to determine whether the arbitrator erred on a matter of law rather than focusing on the words used by the arbitrator in the summary of his conclusions.
26 The arbitrator identified the key issue for his determination as being whether the respondent's injury arose out of or in the course of her employment.
27 His findings on that issue were as follows:
284. It is not certain whether Mrs Wyatt is advancing a case that her injury arose 'out of' her employment or arose 'in the course of her employment'. Mrs Wyatt's position in this regard appears to have waxed and waned throughout the course of this dispute.
285. For example, Mrs Wyatt's initial written submissions emphasise the words 'arising out of' (at [9]) whereas her closing (and substituted closing submissions) refer to the words 'the course of employment' as being the 'ultimate issue' (see at [16] and [10] respectively).
286. In response to the sessional arbitrator's questioning in closing argument the parties were invited to provide further submissions addressing the difference between whether Mrs Wyatt's injury could be said to arise 'out of' or 'in the course of' her employment. Mrs Wyatt's submissions (of 8 October 2015) contend that her injury can be characterised as both arising out of and arising in the course of her employment and a finding under either test is open. Ramsay contend that Mrs Wyatt has not led sufficient evidence to support a finding in either regard.
287. It is clear that arose 'out of' or 'in the course of' are alternatives to each other and a worker need only satisfy one of these tests in order for a personal injury by accident to be compensable. See Telstra Corporation Limited v Bowden at [33], although speaking in respect of the Commonwealth legislation the same principle applies to the similarly worded provision of the Act.
288. For an injury to arise out of employment requires a causal connection, albeit one that is less proximate than 'caused by' or 'results from', but not a connection which is fanciful or tenuous. See Telstra Corporation v Bowden at [37]. However, on 8 April 2014 Mrs Wyatt was on her day off, a break between two distinct periods of work. If Mrs Wyatt was not in fact 'working' on 8 April 2014 it is difficult to understand how Mrs Wyatt's fall can be causally connected to her employment or any incident of it.
289. Regardless of my views of the merits of this argument it is not necessary for me to consider this further as there is sufficient evidence to support a finding that Mrs Wyatt's attendance on 8 April 2014 occurred in the course of her employment. Such a finding does not require determination of whether there is any causal connection to her employment. 'It is sufficient if the injury occurs while the worker is performing work that [s]he has been engaged to do or something reasonably incidental to that work'. See Overstone v Fire & Emergency Services, C4-2009, 11 February 2009 at [6]. [emphasis added]
290. In my view, the appropriate way to approach the determination of whether Mrs Wyatt's injury arose in the course of her employment is to adopt the approach taken by Commissioner McCann in Overstone (at [63]) as approved in Smith v Ranger Camping and Outdoors Pty Ltd [2014] WADC 40:
'... [F]or the purposes of the law of workers' compensation the "course of employment" covers not only the actual work which a worker is employed to do, but also the doing of anything that is "incidental to his services" (which may include an incident which occurs during an interval between two periods of work). In the latter case the test is whether the worker's act "reasonably required, expected or authorised to be done in order to carry out his actual duties" ...' (my emphasis added).
291. The Commissioner cited Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 (per Dixon J at 133) and Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 (per Dixon J at 294) as authority for this proposition. The Commissioner referred to this as the Henderson/Speechley test.
292. As the Commissioner went on to observe (at [23] – [24]), having concluded that there is a distinction between an interlude in an overall period of work (what he classed as the 'first category' of employment) and an interval between two discrete periods of work (what he classed as the 'second category'):
'...[I]t could be said that a test which directs attention to whether the employer has "induced or encouraged the employee to spend [the] interval or interlude at a particular place on in a particular way" is not particularly apposite to the second category which predicates that the worker is entirely at his own disposal for an extended period ... The imperative which underlay the judgments of the High Court in Hatzimanolis, namely to modernise the application of the historical principles, is applicable to injuries which arise in either the first or second category and, in any event, the boundaries between the categories may not always be clear.
Therefore, in my opinion, the correct approach to take in relation to the second category of case is that the Henderson/Speechly test is applicable, but it is necessary to apply it liberally, flexibly and practically, and in a way which accords with contemporary views of what falls within the scope of the employment relationships, and bearing in mind that it may be relevant that the employer expressly or impliedly induced or encouraged the worker to take part, for the purposes of the employment, in the pursuit which caused his injury. In other words, in my opinion the reformulated test might, on the particular facts of a matter, be appropriate to a case which falls within the second category, but it is not necessarily determinative.'
293. In my view, this accords with what has been said in Hills (at [33], cited above). Inducement or encouragement may be a factor to be considered but is not a stand-alone test in this situation.
294. However, as observed in both Hatzimanolis (at 483) and PVYW (at [48]) not every inducement or encouragement will serve to bring an event within the course of employment, the example given being where a worker is encouraged to attend a doctor after working hours (whether applied in regards to interval or non-interval cases).
295. Ramsay rely on Hills as an example that serves to distinguish Mrs Wyatt's situation as being beyond the course of her employment. Hills is to some extent factually apposite as it is not an 'interval case', has regard to the test of whether the activity the worker was engaged in at the time of being injured worker was something the employer reasonably required or expected the worker to do and involved an activity performed by the worker outside of the worker's core hours.
296. In Hills it was held that the Tribunal at first instance erred in relying on the test of inducement and encouragement as a stand-alone test (applied to a non-interval case) (at [33]) but further erred in considering the context of that inducement from the subjective view of the worker (at [36]) when what was required was an 'objective characterisation of the employer's requirements and expectations' of the worker.
297. In this fashion Ramsay contends that it matters little whether Mrs Wyatt felt any subjective pressure or urgency to attend on her day off. She was not required to and was not in fact encouraged to do so. Accordingly, when viewed objectively, Mrs Wyatt's subjective views of what her employer required her to do is not determinative. To some extent, this is consistent with the Court's reasoning in Smith where the subjective view of the 'right thing to do' in rendering assistance to someone injured in a car accident may be morally commendable but nevertheless when objectively viewed is not something the employer required or expected the worker to do.
298. Ramsay also refers me to Roncevich v Repatriation Commission [2005] HCA 40 although it is not clear to what end. However, I am not certain this is overly significant to the determination of whether Mrs Wyatt's injury arose in the course of her employment as it deals with a construction (of the relevant Commonwealth legislation) that turns on whether Mr Roncevich's injury 'arose out of or was attributable to any defence service' which requires consideration of a causal connection.
299. Whilst agreeing with the conclusions of the majority, Justice Kirby's separate judgment descends into matters not traverse by the majority such as addressing the potential for a personal and voluntary choice to sever the (broad) causal connection required to establish whether an injury arose out of employment. See between [72] – [82]. To some extent this analysis may be relevant to any determination of whether Mrs Wyatt's injury arose out of her employment with Ramsay. Indeed, this is broadly what I understand Ramsay's argument to be: Mrs Wyatt was encouraged to complete the graduate evaluation form but she was not encouraged to attend work on her day off and was certainly never encouraged to attend the nurses' station. These were personal choices made by Mrs Wyatt such that her injury cannot be said to have arisen out of her employment. However, as noted, it is not necessary for me to address this argument.
300. If this case is at all relevant it is relevant for the majority's approval of Justice Heery's dissenting judgment in the Federal Court below where Heery J observed the Tribunal at first instance 'effectively ignored what [Mr Roncevich] was, as a matter of practicality, required to expected to do as part of his service in the army' (see at [18]). To some extent this echoes Commissioner McCann's observations in Overstone that a practical and realistic view needs to be taken of a worker's employment when considering the relationship between an injury and employment.
301. Although the matter may be finely balanced, for the following reasons I consider that there is sufficient evidence to support a finding that it is more likely than not that Mrs Wyatt's injury arose in the course of her employment.
302. It is clear that Ramsay expected and encouraged Mrs Wyatt to complete the graduate evaluation form. Mrs Wyatt had received at least two reminders to return it. The form was an incident of Mrs Wyatt's overall employment as a graduate nurse employed by Ramsay.
303. In my view, Mrs Wyatt overstates the subjective interpretation given to the email reminders. However, viewed objectively, I consider that Ms Hannah's emails contained an increased emphasis to return the completed form by (or before) the due date (11 April 2014). The repeated reminder email from Ms Hannah was emphasised in bold and italics. Ms Hannah's supervisor, Ms Cupples, was also copied in on the email. Notwithstanding that Mrs Wyatt's subjective views of Ms Hannah's position regarding the form are not determinative, the objective evidence supports a finding that there was an increasing emphasis to complete the form and Mrs Wyatt was conscious of this.
304. I accept that Mrs Wyatt was not required or directed to attend on 8 April 2014 to complete the form. However, Mrs Wyatt had experienced difficulties in completing the form as Ramsay had requested her to (i.e. at home and by return email). Mrs Wyatt liaised with Ms Hannah about her problems and was directed to contact Ms Blackwell at the LDC to see if she could assist.
305. Although Mrs Wyatt was directed to contact Ms Blackwell by telephone I infer that this did not preclude Mrs Wyatt attending the LDC and speaking directly to Ms Blackwell.
306. Mrs Wyatt stated that she was unable to find time to complete the form at work at any time prior to 8 April 2014. Mrs Wyatt had previously tried to access the form at work and had not been successful. She had attempted to attend the LDC but the days she had attended the LDC was closed. Furthermore, she did not know how busy she would be and whether she would be able to complete the form when she returned to work on the next part of her roster.
307. In my view, the complexity of the form and whether it could have been completed at any time before or after 8 April 2014 does not assist in determining whether Mrs Wyatt's attendance on 8 April 2014 was in the course of her employment.
308. I infer from the fact that Ms Cupples showed Ms Blackwell how to access the form on Sharepoint when Mrs Wyatt attended the LDC on 8 April 2014 that neither Mrs Wyatt nor Ms Blackwell in fact knew how to access this. If this is so, it is difficult to discern whether Ms Blackwell could have been of much assistance to Mrs Wyatt over the telephone.
309. Ms Cupples' evidence was that there was no problem with Mrs Wyatt attending the LDC on her day off it simply had not been arranged.
310. Ms Sharrett stated that people did attend the hospital on their RDO for training. Accordingly, it would seem unobjectionable that Mrs Wyatt would attend the LDC on her day off to complete her form. Ms McCarthy agreed that people attended out of hours for various reasons and did not require permissions to do so.
311. Ramsay's solicitors observed that the fact that Ramsay did not expressly prohibit staff attending on their day off does not amount to an encouragement or inducement to attend. I accept this is correct. However, as noted, inducement and encouragement in this context are only part of the factors to be considered.
312. In my view, it seems artificial to draw a distinction between Mrs Wyatt's attendance at the LDC and the nurses' station on 8 April 2014.
313. On Ramsay's arguments if Mrs Wyatt had fallen at the LDC it seems that her injury may more readily be characterised as arising in the course of her employment. There was no prohibition in place preventing her from doing so and the evidence is that some people did come in on their days off for various reasons.
314. However, Mrs Wyatt was not confined to using the computers at the LDC but could have accessed the form from any computer that supported Sharepoint, including those at the nurses' station. Had Mrs Wyatt known how to access the form there would have been no need to attend the LDC at all. This would not alter the purpose of her attendance only the place in which she attempted to complete her form.
315. Ramsay contends that it is not open for an employee to attend the hospital and go where they may when they are not working. At best Mrs Wyatt was permitted to attend the LDC, although Ramsay contends that Mrs Wyatt was not even encouraged or required to do that but rather to telephone the LDC.
316. I accept that it is not appropriate for Mrs Wyatt to go where she desired within the hospital when she was not working. Common sense suggests that certain places would have clearly been areas beyond the course of her employment in this situation, theatre for example or a sterile area.
317. However, that is not the case here. Mrs Wyatt went between two areas of the hospital with computers. Her purpose for attending was to use a computer to complete the graduate evaluation form. She was not confident she could do so when next at work. She had experienced difficulty accessing the form at home, at work and had been unable to attend the LDC when it was open to obtain assistance. Although it cannot be explained why Mrs Wyatt went to the ward after the form had been brought up by Ms Blackwell at the LDC it does not change Mrs Wyatt's reason for attending the hospital only the method by which she was attempting to complete a necessary incident of her employment.
318. In my view, Mrs Wyatt's attendance on 8 April 2014 was something reasonably incidental to the work she was engaged to do and something that when approached 'liberally, flexibly and practically' (Overstone at [6]) she was reasonably required, expected or encouraged to do and to some extent had been, if only implicitly, encouraged to do by her employer.
319. Although the matter may be finely balanced, I am persuaded that if Mrs Wyatt suffered a personal injury by accident (which I have found not to be the case) then it is more likely than not that that injury arose in the course of her employment with Ramsay.
320. In my view, for very much the same reasons explained above, Mrs Wyatt's fall can then be considered to have occurred in the course of her employment for the purposes of limb 'd' of the definition of injury, as required by Semlitch (as cited at [109], above).
321. Having concluded that Mrs Wyatt has in fact suffered an aggravation of her pre-existing disease(s) to which her employment (i.e. the fall) significantly contributed leaves open the question of whether Mrs Wyatt has been incapacitated as she alleges or is entitled to the statutory expenses sought.
28 By s 18 of the Act, if an injury of a worker occurs, the employer is liable to pay compensation in accordance with sch 1.
29 Relevantly, 'injury' is defined in s 5 of the Act to mean –
(a) a personal injury by accident arising out or in the course of the employment, or whilst the worker was working under the employer's instructions;
(b) ….
(c) ….
(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree;
(e) ….
30 The notion 'course of employment' was central to the arbitrator's reasons for decision.
31 It is the appellant's case on appeal that the arbitrator erred when articulating an incorrect test in determining whether there was sufficient connection between the injury suffered by the appellant and her employment for the injury to have occurred 'in the course of the employment'.
32 The appellant says that in making this error, the arbitrator failed to apply the appropriate legal test in respect of an injury that occurred outside ordinary work hours and between periods of actual work.
33 In Comcare v PVYW [2013] HCA 41, the High Court revisited the principles as formulated in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473, to decide whether injuries suffered by the worker in Comcare were injuries that arose out of or in the course of her employment. The High Court said:
34. It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer's liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee's employment. It did so by characterising the interval by reference to the employer's inducement or encouragement. The employer's liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer's liability beyond that.
35. Because the employer's inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolisthat for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs. [emphasis]
36. Moreover, it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstances in which it occurred and the employment itself. It achieves that connection by the fact of the employer's inducement or encouragement. Thus, where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
37. That this must be so is confirmed by a consideration of the legal reasoning involved in applying the principle stated in Hatzimanolis to the facts of a case. That process of reasoning does not commence with the fact of the employer's inducement or encouragement. The joint reasons sought to direct attention to the new principle and therefore stated it out of the order in which the enquiries inherent in applying the principle would arise for consideration.
Applying the Hatzimanolis principle
38. The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
34 Further:
60. The principle in Hatzimanolisshould nevertheless be understood to have sought, and achieved, a connection or association with employment. For present purposes that understanding is helpful to explain, if it be necessary, that for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.
35 In the present case, the critical question to be addressed by the arbitrator was whether the evidence satisfied him that the appellant's activity was an act that was reasonably required, expected or authorised to be done in order to carry out her actual duties or necessarily incidental thereto, that is to say, in the context of what the respondent was employed to do.
36 Having reviewed the arbitrator's findings and reasons, I am satisfied that in making the finding at [301] the arbitrator did not apply the correct test when determining if the respondent's injury occurred in the course of her employment.
37 The respondent suffered her injury outside ordinary work hours. The arbitrator ought to have considered, and applied, the test as articulated by the High Court in Hatzimanolis v ANI Corporation Ltd, 484; Comcare v PVYW [19], [30], [31], [35].
38 Where the employee was not performing actual work duties within scheduled work hours, it is necessary that the employer has required, induced, authorised, expected or encouraged the worker to spend the particular time in a particular way and to do the very thing when the injury occurs. It is not simply a case of inducing or encouraging a particular outcome and leaving it to the employee to choose a time, place and way of achieving the outcome. It is not sufficient merely to show that the appellant employer has required, induced, authorised or encouraged the particular outcome irrespective of the question of when and how it is to be achieved.
39 It is not readily apparent from the arbitrator's reasons ([302] - [ 317]) how the test of what was reasonably required, expected or authorised to be done to carry out the duty was considered or applied. Importantly, the arbitrator made no finding as to what was required of the respondent or what was to be done.
40 The arbitrator positively found that the respondent was not expressly required or requested to attend the hospital and complete the form on 8 April 2014 ([283(j)]). Seemingly, when considering what might have been impliedly required, expected or authorised by the appellant, the arbitrator took into account the respondent's subjective belief.
41 The 'course of employment' depends on an objective characterisation of the employer's requirements and expectations, but without precise limitation to the contract of employment. Importantly, the subjective belief of the employee was not relevant: Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222 [36].
42 I have considered the expressions used by the arbitrator, including his references at [283(k)], that the respondent felt some subjective pressure to complete the form; at [293], 'inducement or encouragement may be a factor to be considered but is not a stand-alone test in this situation'; at [305], that some conduct was 'not precluded'; at [310], was 'unobjectionable'; at [283(v)] and [313], 'there was no prohibition in place preventing (the respondent) from attending the nurses' station on her days off'; and at [314] and [317], to the respondent's 'purpose for attending'.
43 In my view, the use of such expressions, and the making of findings in that context, support the conclusion that the test applied by the arbitrator focused on the respondent's subjective intention rather than on the duty or activity that was said to be required, induced, expected or authorised by the appellant.
44 The respondent's 'injury' occurred outside work hours, when she was not performing work duties. The respondent was engaging in an activity that was not required, induced, authorised, expected or encouraged by the appellant.
45 As observed in Comcare [35], as the employer's inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. There was no finding made that the appellant required, induced, authorised, expected or encouraged the respondent to attend and seek to complete the form on 8 April 2014. As conceded by the respondent, her attendance at the Peel Health Campus was of her own volition. The respondent chose the time, place and manner of attempting to complete the form.
46 In my opinion, the respondent's circumstances are not brought within the notion of 'employment' and 'course of employment' merely because, at a different time, the Peel Health Campus was her 'workplace' or that her purpose was to complete a form that had been requested, but not at that time and/or place.
47 To adopt such a test is to extend the course of employment to include those places where the employee might consider it appropriate to discharge the function for which she is engaged or to undertake the tasks that she has been requested to do by her employer without regard to the terms of her employment.
48 The focus must be the objective assessment of what she was required, induced, authorised, expected or encouraged by the appellant consistent with her contract of employment, and not otherwise.
49 The test for 'course of employment', as adopted by the arbitrator, seemingly focused on the respondent's thoughts and choices. Her presence at the Peel health Campus outside her normal work hours and what she did on 8April were not matters that the appellant had required, induced or encouraged.
50 Further, what the respondent employee subjectively believed was not relevant - it was not for the employee to mandate the bounds of her employment and the manner in which the employer can require her to undertake the tasks for which she has been engaged. Just as the respondent could not discharge her duties by coming to work on a day other than that for which she was rostered to work, it was not for the respondent to elect the time and manner in which she would attend to complete the form in the absence of being induced or authorised by the appellant to do so at that time and place.
51 The respondent's attendance at the place and at the time she suffered the injury must be in the course of her employment, that is to say, her rostered days to work, in the absence of some encouragement or inducement by her employer to discharge her duties at another time and place.
52 I am satisfied that the arbitrator was in error in focusing on what the respondent was doing at the time, rather than whether the appellant had induced or encouraged the respondent to engage in that activity at the time and the place when she suffered the injury.
53 The appellant did not induce or encourage the respondent to attend the hospital on her day off to complete the evaluation form.
54 Having regard to the findings made, I am satisfied that ground 1 of the appeal has been made out. It follows that leave to appeal should be granted, the appeal allowed, and the decision of the arbitrator set aside.
55 Having undertaken a review of the facts found by the arbitrator that are unchallenged in this appeal, I am satisfied that, had the proper test been applied, the only finding open on the evidence was that the injury suffered by the respondent was not a personal injury by accident arising out of or in the course of her employment, or whilst the respondent was working under the appellant's instructions, as defined in the Act. Accordingly, the respondent's claim must be dismissed.
56 It follows that the respondent's application must fail and her claim be dismissed.
57 In the light of my findings in this appeal, the respondent, having abandoned ground 1 in APP 110 of 2016, that appeal must also be dismissed.
58 I will hear from the parties as to the terms of the orders sought.
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