Re Hughes and Comcare

[2010] AATA 775

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 775

ADMINISTRATIVE APPEALS TRIBUNAL      )         No 2009/4407

)          

GENERAL ADMINISTRATIVE DIVISION		)
Re		MELINDA HUGHES

Applicant

And

COMCARE

  Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date12 October 2010

PlaceCanberra

Decision The decision under review, to reject liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for ‘subacromial bursitis (right)’, is affirmed.

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

Professor RM Creyke, Senior Member

CATCHWORDS

COMPENSATION – subacromial bursitis in right shoulder – arising out of, or in the course of, employment – ‘usual place of work’ for purposes of employment and ‘place of residence’ – injury in VIP carpark – Applicant concluded work – public pedestrian access to VIP carpark – legal and practical control over area – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 6(1)(b), 6(1A), 6(1C)

Re Barnard and Australian Postal Corporation [2008] AATA 507

Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318

Commonwealth v Wright (1956) 96 CLR 536

Mendez v Telstra Corporation Ltd (1998) 147 FLR 394

Musemeci v GEM Engines Pty Ltd (2002) 23 NSWCCR 128

Re Connor and Australian Postal Corporation [2009] AATA 973.

Re Perera and Comcare [2009] AATA 499

Re Reardon and Comcare [2010] AATA 110

Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 525

Young v Albury & Border Pastoral, Agricultural, Horticultural and Industrial Society [1932] 6 WCR 201

12 October 2010                 REASONS FOR DECISION

Professor RM Creyke, Senior Member

1.      Ms Melinda Hughes made a claim for compensation for subacromial bursitis in her right shoulder, which occurred when she tripped on a curb while walking from her workplace at the Department of Immigration and Citizenship (DIAC) Belconnen, Australian Capital Territory, on 2 July 2008.

2.      On 23 September 2008, Comcare denied liability for the injury because Comcare said it occurred while Ms Hughes was on a ‘journey’ between her usual place of work and her residence. That decision was upheld on review in the reviewable decision of 16 March 2009.  

3.      On 16 September 2009, Ms Hughes lodged an application for further review with the Tribunal.

Legislation

4.      For an injury such as subacromial bursitis to be compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), it must have ‘arisen out of or in the course of the employee’s employment’.[1]

[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), s 5A(1)(b).

5.      Section 6 of the Act sets out the circumstances in which an injury is taken to have arisen out of, or in the course of employment. Broadly, if the employee is injured in the workplace, while undertaking work elsewhere for the purpose of  employment, while travelling at the direction or request of the employer, or for the purpose of employment, education, medical or rehabilitation treatment connected with a compensable injury, or for receipt of compensation or wages, the injury falls within section 6.

6.      However, travel between the employee’s residence and the employee’s usual place of work is not travel at the direction or request of the employer.[2]

[2] Act, s 6(1C).

7.      A journey from the workplace to a residence is taken to conclude at the boundary of the residence.[3] There is no equivalent provision relating to the boundary of the workplace. ‘Place of work’ is defined to include ‘any place at which the employee is required to attend for the purpose of carrying out the duties of … employment’.[4]

[3] Act, s 6(1A).

[4] Act, s 4(1) – ‘place of work’.

8.      The definition contains no reference to the geographical boundaries of the ‘place of work’. The meaning of the expression must be determined as a matter of statutory construction and taking into account the relevant facts.

Background

9.      The parties agreed that the following is the correct history of the matter. The Tribunal has accepted and reproduces the agreed facts subject only to minor changes to refer to the parties by name, for grammatical felicity, or for ease of understanding. The Tribunal is satisfied that the agreement is appropriate and in accordance with the available documents.

10.     Ms Hughes at all material times was employed as a policy officer with DIAC.  Her usual place of employment was 6 Chan Street, Belconnen in the Australian Capital Territory. Ms Hughes worked in the North Building (the building) of the Benjamin Offices.

11.     The work of DIAC employees in the Benjamin Offices is conducted within the leased areas of the premises.  DIAC leases the lettable space shown on the relevant Australian Capital Territory plans but is not responsible for the grounds surrounding the building. There is a boom gate immediately outside the building that is controlled by DIAC but the area of land controlled by the boom gate is the lessor’s land. This land is used by DIAC for VIP parking and other exceptional circumstances.

12.     At around 4.30pm on 2 July 2008, Ms Hughes walked out of the building, through the central courtyard, turned left and walked along the covered walkway located under the building. She then turned right and stepped down into the gutter and crossed an internal road on the right hand side of the boom gate and three bollards. As she stepped up onto the footpath, she tripped and fell to the ground. Ms Hughes used her right hand to break her fall. 

13.     On 3 July 2008, she sought medical treatment. On 3 July 2008, Dr Aidan Lawrence, general practitioner, diagnosed Ms Hughes with impingement injury to her right shoulder and recommended manipulation therapies including physiotherapy, osteopathy, application of heat, and work ergonomic assessment. 

14.     On 23 July 2008, Dr Lawrence certified Ms Hughes as unfit for work from 4/7/08 to 18/7/08 and fit for suitable duties from 21/7/08.

15.     On 16 August 2008, Dr Lawrence provided a medical certificate diagnosing her condition as: ‘Acute internal derangement/soft tissue injury with dysfunction/pain R shoulder’ and certified Ms Hughes as unfit for work from 2/7/08 to 18/7/08.

Issues

16.     The parties agreed that the overarching issue was whether the injury arose out of, or in the course of, Ms Hughes’s employment. The particular issues underpinning the principal issue were:

·Whether the injury happened while Ms Hughes was at her ‘place of work … for the purpose of that employment’ (section 6(1)(b) of the Act)? or

·Whether the injury happened while Ms Hughes was travelling between her ‘usual place of work’ and her ‘place of residence’ (section 6(1C) of the Act)?

Evidence

17.     DIAC is the sole tenant of the premises located at 6 Chan Street, Belconnen.  The premises comprise of two connected buildings and are structured like an ‘H’ shape: the North Building and the South Building are collectively known as the Benjamin Offices. 

18.     DIAC leases the premises, the term of the lease being for 15 years from 2004, although the lease was signed in 2006. The area being leased comprises the premises, namely, what are described in the lease as ‘the lettable areas’ of the Benjamin Offices, with the lease refers to DIAC’s right to use the ‘common areas’.[5]

[5] Lease clause 1.1, items 1, 2.

19.     The ‘common areas’ mean ‘those areas of the land … for common use by [DIAC] and the lessor’, and authorised persons and members of the public, ‘including walkways, pavements, driveways and access and egress roads but does not include areas within the building’.[6]  

[6] Lease clause 2.1.

20.     Adjacent to the building are public car parks. Ms Hughes’s car on the relevant day was located in a public car park directly adjacent to the building.

21.     Also adjacent to the building, on its western side, is an area of land controlled by a boom gate. The boom gate and the land adjacent to the building within the boom gate are controlled by DIAC, although the land is the lessor’s land.

22.     According to evidence provided by Ms Doris Gerwien, Assistant Director of the Leasing Team in the Property and Financial Operations Branch, DIAC, the area controlled by the boom gate was used for authorised (or VIP) parking at DIAC and what was described as ‘exceptional circumstances’. Nonetheless, her evidence was that the area could be accessed by any member of the public on foot. The boom gate only controls vehicular entry.

Evidence by Ms Hughes

23.     Ms Hughes pointed out that her injury occurred in the VIP car parking area, an area which she sometimes uses in the course of her employment if she has cause to move between the two buildings of the Benjamin Offices. She acknowledged, however, that on the day of her injury she was not crossing the area for the purpose of her employment, but in order to reach her car to travel home at the end of her working day.

24.     She acknowledged that the area where her car was parked was public, and also that any member of the public could walk through the VIP area. It is only vehicles that cannot access the VIP area without permission.

25.     Ms Hughes was not certain whether there are surveillance cameras in the VIP car park area, but she asserted that the security guards are responsible for everyone on the secure side of the boom gate.

Consideration

26.     It was contended by Ms Hughes that her injury occurred at a point where there was restricted public access as indicated by the boom gate and bollards. She claimed this was an area that DIAC controlled and there was limited general access. She also pointed out that temporary access to the area was controlled by security guards employed by DIAC. 

27.     Accordingly, Ms Hughes contended the area comprised her usual place of work in accordance with section 6(1)(b) of the Act.  

28.     Comcare denied the contention, claiming instead that Ms Hughes was on a journey to her place of residence. In Comcare’s view, the amendments to the Act excluded liability for injuries which arose during the ‘journey’ between work and home and Ms Hughes had begun a journey home on the relevant day. Those injuries are taken not to ‘

29.     Comcare also said that the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) made it clear that the proposed changes to the legislation were to avoid ‘employers … being held liable for injuries for the activities of their employees that are beyond their control’.[7] In Comcare’s view, on the relevant day Ms Hughes was traversing an area over which DIAC only had control for certain purposes and Ms Hughes use of the area was not for one of those purposes, but in order to enable her to go home. Accordingly, in Comcare’s view, Ms Hughes’s injury had not arisen out of or in the course of employment’ but rather occurred on a ‘journey’ and not at ‘her place of work’.  As a consequence it was not compensable.

[7] Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth), 8. See also Mendez v Telstra Corporation Ltd (1998) 147 FLR 394.

30.     Ms Hughes was either on a ‘journey’, in which event her injury is not compensable, or at her ‘place of work’, in which case Comcare would be liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). If it is decided that she was not injured at her ‘place of work’ it follows, on the facts provided, that Ms Hughes was on a ‘journey’.

31.     The existing case law indicates that the question of whether someone is in their ‘place of work’ when they are injured is, in each case, a question of fact.[8]  Nonetheless, there are a number of factors that have been identified which usefully assist in deciding that question. No one of these factors is decisive. The overall effect of the factors must be considered and weighed.

[8] Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318, 324 (Northrop J).

32.     Those factors, as relevant, include:

·Whether the place where the injury occurred was within premises which ‘the employee is required to attend for the purpose of carrying out the duties of his or her employment’.[9]

·If not, for example, because the injury arose in an area adjacent to the building, whether the employer nonetheless exercised control over that area.[10]

·If the injury occurred outside the building which was the usual place of work whether at the time of the injury, the employee was carrying out the duties of his or her employment.[11]

·Whether the place where the injury occurred was one in which there was unrestricted public access.[12]

[9] Section 4(1) – ‘place of work’. See also Commonwealth v Wright (1956) 96 CLR 536 (Webb, Fullagar and Kitto JJ; Dixon CJ, McTiernan J dissenting); Re Perera and Comcare [2009] AATA 499, para 15; Young v Albury & Border Pastoral, Agricultural, Horticultural and Industrial Society [1932] 6 WCR 201, 206 (Perdriau J) cited in Musemeci v GEM Engines Pty Ltd (2002) 23 NSWCCR 128, 133.

[10] Re Perera and Comcare [2009] AATA 499, para 15; Re Reardon and Comcare [2010] AATA 110.

[11] Eg Commonwealth v Wright (1956) 96 CLR 536 (Webb, Fullagar and Kitto JJ; Dixon CJ, McTiernan J dissenting).

[12] Re Perera and Comcare [2009] AATA 499, para 15; Re Reardon and Comcare [2010] AATA 110.

33.     It is common ground that the injury to Ms Hughes did not occur within the ‘lettable area’ of the Benjamin Offices. At most the site of her injury might be in a ‘common area’.

34.     Northrop J in Comcare v O’Dea said of the word ‘place’ in the context of ‘place of work’ that it ‘connotes a defined area, normally the whole area of the workplace … or to put the matter in another way, the area over which the owner or legal occupier of the area has control’.[13]

[13] Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318, 325.

35.     In addition, he noted that as ‘place of work’ was defined in the Act, ‘[t]he meaning of the expression … in s 6 of the [Act] is such as to make the result in a given case depend largely upon matters of fact and degree’.[14] He went on: ‘In the context of travelling between a place of residence and the place of work, in general understanding of the expressions, what is connoted are the boundaries of the place of residence and the place of work’.[15]

[14] Ibid.

[15] Id, 325-6.

36.     The upshot is that, despite the absence of any reference to ‘boundary’ in the definition of ‘place of work’, the discussion in Comcare v O’Dea indicates that as a practical matter the boundary of the workplace should be identified, although the absence of any specific reference to ‘boundary’ in section 6 indicates that the result must depend on matters of fact and degree.[16] That identification process depends on a number of factors, principally whether the legal occupier, here DIAC, has ‘control’ of the relevant area. 

[16] Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 525, 534 and 536 (Walters J); and at 544-545 (Zelling J); cf at 529 (Bray CJ).

37.     The Tribunal finds that the gutter in which Ms Hughes slipped is located within the area bounded by the boom gate – the VIP parking area. The issue is whether DIAC had control of the area. ‘Control’ is not limited to legal control but includes practical control.[17] That is significant since the relevant area of land is acknowledged to be the land of the lessor.

[17] Re Barnard and Australian Postal Corporation [2008] AATA 507, para 54. The remark in the case is dicta but in principle is correct.

38.     On the evidence, DIAC security officers controlled the lifting of the boom gate for the purpose of permitting entry of the cars of VIPs or in other ‘exceptional circumstances’. In other words, the control over what was the lessor’s land was exercised for one purpose only, to permit vehicular access to the car park behind the boom gate or ‘in exceptional circumstances’. There was no general right to control all movements in the VIP car park area.

39.     In this regard, the situation facing Ms Hughes differs from the facts in Re Connor and Australian Postal Corporation.[18] In Re Connors, the Australia Post leased at least part of the car park area in which the employee was injured, the applicant traversed the area as part of her duties, Australia Post had control over the area in being able to decide when to lock it and when to open it, the area was restricted to the employees and customers of Australia Post, and Australia Post was obliged to notify the lessor of defects and hazards in the area.[19] In Re Connors the extent and level of control by the employer was significantly greater than DIAC’s in relation to the VIP car park.

[18] Re Connor and Australian Postal Corporation [2009] AATA 973.

[19] Id, paras 14 – 16.

40.     DIAC did not generally control the area, for security or other purposes. There was no indication that the area was under surveillance, and the Tribunal accepts the evidence that employees or members of the public could traverse the area without seeking permission, provided they were on foot. Since Ms Hughes’ use of the area was on foot and not in a vehicle, DIAC did not attempt to control her user. For that reason, there was no exercise of control by DIAC over her movements in the relevant area when she was injured.

41.     The Tribunal rejects the argument of counsel for Ms Hughes that the degree of control of DIAC security guards over the VIP car park is the same as the degree of control the guards exercise in relation to the reception area of the building. The Tribunal considers that security guards would have authority to question members of the public using the reception area of the building but would not be able to query members of the public walking through the VIP car park, for example, to get to the adjacent street or the public car park.

42.     That is insufficient on its own, however, to make a finding about the boundary question. If Ms Hughes had been traversing the area in the course of her employment, for example, walking from the North Building and the South Building to attend a meeting and had been injured in one of the ‘common areas’, or, as was suggested at the hearing, injured in the same spot in the course of picking up a document from a courier for the purpose of her employment, the injury would be regarded as having occurred in her place of work and be compensable.

43.     However, on the evidence, as the VIP car park area where she was injured is not en route to the South Building, and indeed, the only entrance to the Benjamin Offices is through the central courtyard, her injury did not occur at her ‘place of work’ for the purposes of section 6(1)(b).

44.     In addition on the occasion in question, Ms Hughes was not engaged in her employment but was in the course of leaving work for the day to travel to her residence.[20] In those circumstances, Ms Hughes was not injured within the boundary of her ‘place of work’, and since she was not engaged in employment but was on her way to her car to travel to her residence, she was involved in a ‘journey’. As a consequence, her injury is not compensable. The decision under review is affirmed.

[20] Re Barnard and Australian Postal Corporation [2008] AATA 507.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ..................[sgd].............................
  Associate

Date/s of Hearing  26 August 2010
Date of Decision  12 October 2010
Counsel for the Applicant         David Richards
Solicitor for the Applicant          Slater & Gordon
Counsel for the Respondent     Ben Dube
Solicitor for the Respondent     Sparke Helmore