Reardon and Comcare
[2010] AATA 110
•12 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 110
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3427
GENERAL ADMINISTRATIVE DIVISION ) Re Shane Reardon Applicant
And
Comcare
Respondent
DECISION
Tribunal Mr S. Webb, Presiding Member
Dr M. Miller AO, MemberMr M. Hyman, Member
Date 12 February 2010
Place Canberra
Decision The decision under review is affirmed.
..................[sgd]....................
Mr S. Webb, Presiding Member
Compensation – injury claimed in the course of complying with a statutory requirement to attend a medical appointment – meaning of ‘arising out of, or in the course of’ employment – Applicant absent from employment as a result of incapacity – meaning of ‘place’ - incident occurred while travelling from home to attend a medical appointment – journey not covered by compensation scheme - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 57, 64
Isaacs v Commission of Taxation (2006) 151 FCR 427
Scott v Cawsey (1907) 5 CLR 132
Thiele v Commonwealth of Australia (1990) 22 FCR 342
I W v City of Perth (1996) 191 CLR 1
Waters v Public Transport Corporation (1991) 173 CLR 349
Stingel v Clark (2006) 226 CLR 442
Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328
Bird v Commonwealth (1988) 165 CLR 1
Barac v Farnell (1994) 53 FCR 193
R v Young (1999) 46 NSWLR 681
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Davey v Green (1914) 20 ALR 375
Re Thymianos and Comcare [2009] AATA 82Re Perera and Comcare [2009] AATA 499
REASONS FOR DECISION
12 February 2010 Mr S. Webb, Presiding Member
Dr M. Miller AO, Member
Mr M. Hyman, Member1. The facts related to this application are not in dispute.
2. Mr Reardon is an employee of the ACT Department of Disability, Housing and Community Services. He is an ‘employee’ for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
3. Mr Reardon sustained a series of physical injuries in 2000 and 2005. He suffered a psychological injury and incapacity for work as a result. Comcare accepted Mr Reardon’s claims for compensation in respect of those injuries. On 23 March 2009 Comcare required Mr Reardon, under section 57 of the SRC Act, to undergo a medical examination by Dr William Knox, a consultant psychiatrist, in relation to a psychological injury for which liability had been accepted. The examination was scheduled for 9.00am on 6 May 2009 in Dr Knox’s rooms on Level 8 of the AMP Building in Hobart Place, Canberra City.[1]
[1] Identified by the number ‘8’ on the map in Exhibit 6 (Attachment A to Exhibit 1), p1.
4. At that time, Mr Reardon was absent from his employment on incapacity grounds. Consequently, he travelled from his home to the appointment with Dr Knox by car. He parked in a public car park a short distance away from the AMP Building.[2] He alighted from his vehicle and proceeded toward the AMP Building on the opposite side of the public thoroughfare known as London Circuit.[3] Unfortunately, Mr Reardon tripped in the gutter at the edge of London Circuit as he was about to cross the road; he fell and injured his left ankle. The location in which this incident occurred is not in dispute and is indicated by the letter ‘x’ on the map at Exhibit 6. Shortly thereafter Mr Reardon obtained medical treatment for the injury from Dr Stephen Tang.
[2] Identified as ‘Car Park 13’, with the precise location marked by the letter ‘X’, Exhibit 6 (Attachment A to Exhibit 1), p1 and p3.
[3] The direction is indicated by the arrow marked on the map in Exhibit 6 (Attachment A to Exhibit 1), p1 and p3.
5. On 13 May 2009 Mr Reardon submitted a Claim for Workers’ Compensation in respect of the injury to his ankle. Comcare determined to accept his claim but subsequently reconsidered the matter and rejected his claim. Mr Reardon is unhappy with that decision and has applied for review.
6. The issue for determination is whether Mr Reardon’s claimed left ankle injury arose out of or in the course of his employment.
7. Mr Ryan, counsel for Mr Reardon, asserted in the alternative that the medical costs Mr Reardon incurred in relation to his claimed ankle injury should be reimbursed as part of his costs in attending the appointment with Dr Knox under subsection 57(3) of the SRC Act. Whether that is correct or not, however, is not for us to decide. Mr Reardon has not claimed and Comcare has not made a decision concerning any reimbursement of medical treatment costs under subsection 57(3) of the SRC Act. The Tribunal does not exercise power at large and may only exercise the powers and discretions that were conferred upon the person who made the decision under review for the purpose of reviewing that decision.[4] For present purposes concerning Mr Reardon’s application for review, the Tribunal’s jurisdiction is enlivened by an application under section 64 of the SRC Act. Subsection 64(1)(a) provides that a claimant may apply to the Tribunal for review of a reviewable decision as defined.[5] As can be seen, even if Comcare made a decision under subsection 57(3), a decision of that kind is not within the meaning of a ‘reviewable decision’. It follows, therefore, that the Tribunal has no jurisdiction to review such a decision and Mr Ryan’s submission is not made out.
[4] Isaacs v Commission of Taxation (2006) 151 FCR 427 at [36].
[5] Section 60, Safety, Rehabilitation and Compensation Act 1988.
Did the claimed injury arise out of or in the course of employment?
8. Mr Ryan argued that the SRC Act is remedial and beneficial legislation, providing a compensation scheme for injured employees. In that context the legislation should be interpreted in a manner that is favourable to an injured worker, especially if there is ambiguity in any applicable provision. In Mr Ryan’s submission there is ambiguity in the applicable provision on which this case turns.
9. The term ‘place’ in subsection 6(1)(f) is not given specific meaning, it is not a technical term or a term of art and should, therefore, be given its meaning in common usage;[6] the definition of ‘place of work’ at subsection 4(1) is not applicable. Mr Ryan asserted that ambiguity arises from the meaning of ‘place’ in common usage: ‘place’ can mean a specific location, such as a doctor’s rooms, or a general area, such as a building, a precinct, or a city. Thus, Mr Ryan submitted that ‘place’ needs to be read in a liberal manner that is favourable to Mr Reardon to embrace the vicinity of the building where Mr Reardon’s medical examination by Dr Knox was to take place, including the car park across London Circuit. On this reading, Mr Ryan urged us to accept that Mr Reardon was at the ‘place’ where the medical appointment was to occur once he had alighted from his parked car.
[6] Scott v Cawsey (1907) 5 CLR 132 at [8] per Griffith CJ.
10. Additionally, in Mr Ryan’s submission, the phrase ‘at a place’ in subsection 6(1)(f) is open to a number of possible interpretations and should be construed in a manner favourable to Mr Reardon. The phrase could be taken to mean a specific place in which the actions specified in paragraphs 6(1)(f)(i) to (vi) are to take place – the place in which the medical examination is to be conducted for example. Alternatively, the phrase could be taken to mean any place at which a person is injured if the person was at that place for the purpose of complying with a requirement to undergo a medical examination – in a car park or on a footpath outside the place in which the medical examination is to be conducted for example. In Mr Ryan’s submission the latter construction is more favourable to Mr Reardon and should be adopted. Thus, Mr Reardon should be taken to have ceased travelling when he parked his car in car park 13, having arrived at the place of his medical examination by Dr Knox, being the general vicinity of the AMP Building. He was at the place where the injury occurred for the purpose of complying with his legal obligation to undergo a medical examination by Dr Knox.
11. Furthermore, Mr Ryan submitted that Mr Reardon’s claim must be dealt with fairly and equitably. To exclude Mr Reardon from receiving compensation for the claimed injury he sustained in the course of complying with his legal obligation to attend the medical appointment with Dr Knox at Comcare’s direction would be manifestly unfair and contrary to the beneficial nature of the SRC Act.
12. Mr Ryan submitted that the existing form of section 6 of the SRC Act, and the effect of subsection 6(2) in particular, may give rise to anomalous outcomes and may result in unfairness if a narrow interpretation of ‘place’ is applied. The combined effect of subsections 6(1)(d), (f) and 6(2) of the SRC Act is that if a person is legally obliged to attend a medical examination ‘at a place’ and is injured while travelling to that ‘place’, he or she may not be entitled to compensation, whereas if the person is injured ‘at’ the ‘place’ of the medical examination, he or she may be entitled to compensation. Thus, if a narrow interpretation is applied, a person who is injured immediately outside the place in which the medical examination is to be conducted may be excluded from obtaining compensation on the basis that he or she was ‘travelling’ and had not yet arrived at that place even though the person was only at that place for the purpose of undergoing the medical examination, whereas a person who is injured in the place at which the medical examination is to be undergone may be entitled to compensation. In Mr Ryan’s submission, a narrow construction of this kind could not have been intended by the legislature as it results in manifest unfairness. Furthermore, applying an overly narrow or strict interpretation of the applicable provisions would not be consistent with long established case law concerning statutory construction, generally, or the meaning of ‘place’, specifically. Mr Ryan referred us to a number of cases on these points to which we will return.
13. Thus, in Mr Ryan’s submission, the Tribunal must construe the provisions in a manner that is favourable to Mr Reardon by adopting a fair, large and liberal meaning of the term ‘place’. On that basis, the decision under review should be set aside and Comcare should be found liable for the claimed injury.
14. We do not agree.
15. The applicable legislation is the SRC Act as it stood on the date of the claimed injury. Under the SRC Act Comcare is liable to pay compensation for an injury in certain circumstances.[7] ‘Injury’ is relevantly defined as ‘an injury (other than a disease) suffered by an employee that is a physical or mental injury suffered in the course of or arising out of, the employee’s employment.’[8]
[7] Section 14, Safety, Rehabilitation and Compensation Act 1988.
[8] Section 5A, Safety, Rehabilitation and Compensation Act 1988.
16. The circumstances in which an injury is to be treated as having arisen out of or in the course of employment are expanded upon in non-exhaustive terms at section 6 of the SRC Act. The potentially relevant provisions of section 6 read as follows:
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(d) while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or...
(f) while the employee was at a place for the purpose of:
…
(v) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or…
(2) In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f).
17. As can be seen, an injury that is sustained while ‘travelling’ to a place for a medical examination is subject to the exclusionary effect of subsection 6(2) and is not compensable. While it may be accepted that perceptions of unfairness may arise in the circumstances to which Mr Ryan has alluded – an injury that occurs outside the place of a medical examination may not be compensable, whereas an injury that occurs at the place of a medical examination may be compensable – it does not follow that the provisions to which we have referred should be interpreted in a manner that would subvert the clear purpose of subsection 6(2).
18. There is ample authority for the proposition that worker’s compensation legislation, being beneficial and remedial legislation,[9] should be interpreted in accordance with its remedial and beneficial purposes: ‘[B]eneficial and remedial legislation... is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”’.[10] It ‘should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation’;[11] a ‘generous construction’ is required.[12]
[9] Thiele v Commonwealthof Australia (1990) 22 FCR 342.
[10] I W v City of Perth (1996) 196 CLR 1 per Brennan CJ and McHugh J at 12.
[11] Ibid per Kirby J at 58.
[12] Waters v Public Transport Corporation (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ.
19. It is also the case that where more than one interpretation of a statute is possible, that to be adopted should not only accord with the purposes of the statute, but should if possible avoid anomalies and harsh outcomes: ‘There being... two constructions reasonably open, that should be preferred which produces a fair result that promotes the purpose of the legislation.’[13] The established principle identified by Fullagar J in his dissenting judgment in Wilson v Wilson's Tile Works Pty Limited[14] ‘where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred’[15] applies if the circumstances of a particular case fall within the general spirit of such legislation;[16] ‘any ambiguity ought not be construed narrowly’.[17] There is a public interest in compensation claims by injured workers being dealt with fairly and equitably in order to avoid unjust or capricious outcomes.[18]
[13] Stingel v Clark (2006) 226 CLR 442 at 454 per Gleeson CJ, Callinan, Heydon and Crennan JJ.
[14] (1960) 104 CLR 328.
[15] Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328 at 335.
[16] Bird v Commonwealth (1988) 165 CLR 1 at 5 per Gaudron and Deane JJ.
[17] Ibid at 6 per Mason CJ, Brennan and Toohey JJ.
[18] Barac v Farnell (1994) 53 FCR 193 at 207-208 per Beaumont J.
20. On the other hand, the courts have emphasised that a liberal reading does not extend to distorting the purpose or normal reading of the words of the statute: ‘The beneficial operation of such legislation is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language’;[19] ‘Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural’;[20] ‘Courts will not unduly stretch the language of such legislation’.[21]
[19] Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 per Brennan J.
[20] I W v City of Perth (1996) 196 CLR 1 at 12 per Brennan CJ and McHugh J.
[21] Ibid at 58 per Kirby J.
21. The correct approach to construction is text-based;[22] the provision must be construed in its context, so that it is consistent with the language and purpose of all the provisions of the SRC Act.[23] But this does not permit an unreasonable or unnatural construction or a rewriting of the provision.[24] The Tribunal must ‘give effect to the will of Parliament as expressed in the law’.[25]
[22] R v Young (1999) 46 NSWLR 681 at 687.
[23] CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 (per McHugh, Gummow, Kirby and Hayne JJ); Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273 at 280-281 (per McHugh, Gummow and Hayne JJ).
[24] Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113 per McHugh J.
[25] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.
22. In 2007 the Parliament amended the SRC Act,[26] introducing (relevantly) subsection 6(2) to exclude certain kinds of journeys from the ambit of the legislative scheme for compensation. Compensation was thenceforth no longer payable for injuries sustained on such journeys, including journeys to attend medical consultations.
[26] Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006.
23. Thus, when considering the combined effect of subsections 6(1)(d), (f) and (2) one must distinguish between ‘travelling’ to a place and being ‘at’ a place – there is a point at which a threshold is crossed, marking the arrival at the end of a journey, after which the person can reasonably be said to be ‘at’ the place to which they were travelling. It is necessary, therefore, to determine whether Mr Reardon was travelling or whether he had arrived at a place for the purpose of undergoing a medical examination when his claimed injury occurred. Did his journey come to an end when he parked his car in car park 13, or did it come to an end at some other point, when he arrived at Dr Knox’s rooms in the AMP Building for example?
24. There is, of course, a related question that must be addressed in this context: what is the ‘place’ at which Mr Reardon was required to attend? The word ‘place’ as it is used in subsections 6(1)(f) and (2) must be read in the proper context of the section and the SRC Act. Even though it can be accepted that the word is not given specific meaning under the Act and it is not a term of art, it does not follow that any of the various meanings of ‘place’ in common usage to which Mr Ryan referred can be applied. The word draws meaning from the context in which it is placed, and in that context the plain words of the legislation do not give rise to any ambiguity. The phrase ‘the employee was at a place for the purpose of’ in subsection 6(1)(f) of the SRC Act is specific and purposive. The concept of being ‘at’ ‘a place’ signifies attendance or arrival at that place. The context of the provision, however, guides interpretation - the ‘place’ is not any place at large, but it is a place relative to the purpose specified in subsequent paragraphs. It can be accepted, in general terms, that a place is a spot on which something can be done.[27] The thing to be done, the specified purpose in the present case, is a medical examination. Thus, the place in point is the place at which the specified purpose, the medical examination, is to occur. As can be seen from the agreed facts, the medical examination was to take place in Dr Knox’s rooms on Level 8 in the AMP Building. That is the ‘place’ at which Mr Reardon was to attend for the purpose of undergoing the medical examination and that is the place to which the section refers in the present circumstances. It is the place to which Mr Reardon was travelling on the day of his claimed injury. Unfortunately for him, he had not yet arrived at that place when his claimed injury occurred; at the time he was travelling to the doctor’s rooms and his claimed injury is excluded by operation of subsection 6(2) of the SRC Act. We so find.
[27] Davey v Green (1914) 20 ALR 375.
25. We are not persuaded that the ‘place’ to which the section refers can be reasonably interpreted to mean any point in Mr Reardon’s journey to the doctor’s rooms or some broader concept embracing the vicinity of the doctor’s rooms, however defined. Whether the ‘place’ was reached and Mr Reardon’s journey came to an end on entry into the building, arrival at the relevant floor or entry into the actual premises of Dr Knox does not need to be resolved here. We are reasonably satisfied that Mr Reardon’s journey had not come to an end when he parked his car in car park 13 or when he tripped on the kerb of London Circuit – in both cases he was travelling to the place he was required to attend for the purposes of undergoing the medical examination; he had not yet arrived at that place. He was not at the kerb of London Circuit for the purpose of undergoing a medical examination; he was there because he was travelling to attend the doctor’s rooms in the AMP Building for that purpose, as required. It follows, and we find, that Mr Reardon had not arrived at the place to which he was travelling for the purpose of undergoing the medical examination by Dr Knox when he parked his car in car park 13 – he still had some distance to travel, albeit on foot; his journey had not yet come to an end at the kerbside of London Circuit, where his claimed injury occurred.
26. We do not accept that ‘place’ in the present circumstances can be construed to extend to the public car park in which Mr Reardon parked his car or to the kerbside of London Circuit where the claimed injury occurred, or to any other part of that public thoroughfare. Nor, if Mr Reardon had travelled by bus, would it extend to the bus station, nor if on foot, to the threshold of his house. Such a construction would strain the plain meaning of the words used in the section. The beneficial nature of the statute does not authorise or permit us to adopt an unnatural meaning of the words used when their meaning can readily be understood, without ambiguity, when read in the proper context. We are satisfied and find that there is no reasonable basis for concluding that a footpath across the road from the doctor’s rooms forms part of the place at which Mr Reardon was required to attend for the purposes of the medical examination pursuant to section 57 of the SRC Act. The claimed injury occurred in a public place, not in a place that formed any part of the doctor’s rooms. There is no reasonable basis to suggest that the doctor was responsible for the safety of persons using the footpath or that the doctor would take action to make the kerb across the road from his building safer to walk on.
27. The assertion that Mr Reardon was only in the place at which his claimed injury occurred because he was required to attend an appointment with Dr Knox does not satisfy the requirement of the applicable section. Adopting this construction would be contrary to the express terms of subsection 6(2) of the SRC Act; it would render that subsection impotent, with no work to do. On that construction ‘place’ could be interpreted to meaning any point in an employee’s journey to attend a medical consultation where an injury occurred, on the basis that the only reason the employee was in that place was because he or she was travelling to the medical consultation. That approach is not consistent with the legislation in terms and is not correct. Mr Ryan’s submissions on this point are not accepted.
28. In Re Thymianos and Comcare[28] the Tribunal reached the same conclusion in closely similar circumstances. Mr Ryan argued that the two cases should be distinguished, as in Thymianos Mrs Thymianos had not alighted from her vehicle when the injury was sustained. There is, however, no logical reason why parking a vehicle should be regarded as the moment that the journey to a consultation comes to an end.
[28] [2009] AATA 82.
29. In Re Perera and Comcare[29] the Tribunal concluded that a journey to a place of work had not ended when an employee was injured on the threshold of the building. The area was open to public access and the employer could not be expected to take responsibility for preventing injuries from occurring. The SRC Act defines ‘place or work’ as used in section 6 but does not define the broader term ‘place’; but that does not of itself suggest any basis for interpreting the beginning and end of the journey from one place to another differently.
[29] [2009] AATA 499.
30. We note Mr Ryan’s submission that it is manifestly unfair to exclude Mr Reardon from compensation as he was injured while complying with Comcare’s direction under section 57 of the SRC Act. If there is any unfairness, and we make no such finding, it is not the result of Mr Reardon being treated differently than others in similar circumstances.[30] We can readily understand that Mr Reardon perceives that the exclusion of injuries sustained while travelling in compliance with a statutory requirement is unfair, but that is a matter governed by the 2007 amendments to the SRC Act, and it is not amenable to rectification by this Tribunal. As can be seen from the extrinsic materials pertaining to the amending legislation, the Regulation Impact Statement included as part of the Explanatory Memorandum examined options for coverage of journeys in the Act, and concluded that the preferred option was to exclude all journey claims unless ‘they were an integral part of the employee’s duties’.[31] The stated policy behind this change was that liability to compensate employees for injury should where practicable be aligned with the duty and capacity of employers to protect their employees from injury. The Second Reading speech by the Minister explicitly endorsed this approach to employer liability associated with journeys.[32] The approach we have adopted is consistent with the purpose of the applicable provisions and the SRC Act, in terms, and with the underlying policy intentions of the legislature expressed in the extrinsic materials to which we have referred.
[30] See, for example Thymianos and Comcare [2009] AATA 82.
[31] Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006.
[32] Parliamentary Debates, House of Representatives, 30 November 2006, 5 (Hon Kevin Andrews, MP, Minister for Employment and Workplace Relations).
31. One can also accept that unfairness may arise in certain circumstances if a strict interpretation of ‘place’ is applied. The particular circumstances of each case must be carefully considered. Nevertheless, for us in the present circumstances, Mr Reardon’s claimed injury on the edge of a public thoroughfare, across the road from the multi-level building in which Dr Knox’s rooms were located, is a step too far; it is more consistent with an injury while travelling to those rooms, and it is not within the terms of subsection 6(1)(f) of the SRC Act.
32. As we have said, section 6 does not set out an exhaustive list of circumstances in which a claimed injury may be treated as having arisen out of or in the course of employment. Mr Reardon’s circumstances, however, are properly addressed under that section in terms, for the reasons we have set out. The circumstances in which his claimed injury occurred are not such that any other temporal or causal nexus with his employment can be established.
33. That being so, it follows that claimed injury is not within the terms or the spirit of the SRC Act as amended.
34. The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member, Dr M. Miller AO, Member and Mr M. Hyman, Member.
Signed: ...................[sgd]................................................................
J. Lakin, AssociateDate of Hearing 17 December 2009
Date of Decision 12 February 2010
Counsel for the Applicant Mr C. Ryan
Solicitors for the Applicant Lander & Co, SolicitorsCounsel for the Applicant Mr B. Dube
Solicitors for the Respondent Sparke Helmore Lawyers
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