Robotham (Lawless) and Comcare
[2000] AATA 213
•21 March 2000
CATCHWORDS – COMPENSATION – applicant diagnosed with spondylolisthesis during physical examination arising from October 1986 fall – whether the applicant's fall in October 1986 arose out of, or in the course of, her employment – whether episodes of pain suffered since October 1986 were caused by her fall – decision affirmed.
Compensation (Commonwealth Government Employees) Act 1971 – ss 5, 24, 27,
Defense Act 1903 – s. 45(1)
Safety Rehabilitation and Compensation Act 1988 – s 24, 124(1A)
Workers Compensation Act 1987 (NSW) – s 9
Behan v Australian Telecommunications Corporation (1990) 22 ALD 545; (1990) 99 ALR 79; (1990) FCR 337; (1990) 12 AAR 466
Charles R Davidson v M'Robb [1918] AC 304
Comcare v Mather and Mitchell (1995) 37 ALD 463
Comcare v O'Dea (1997) 26 AAR 252
Commonwealth v Wright (1956) 96 CLR 536
Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529
Gregory v Comcare (unreported, [1997] 4 FCA, 15 January, 1997)
Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473
Humphrey Earl Limited v Speechley (1951) 84 CLR 126
DECISION AND REASONS FOR DECISION [2000] AATA 213
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/442
GENERAL ADMINISTRATIVE DIVISION )
Re SHIRLEY LORRAINE ROBOTHAM (LAWLESS)
Applicant
And COMCARE
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Dr K P Kennedy (Member)
Mr I R Way (Member)
Date 21 March, 2000
Place Brisbane
DecisionThe Tribunal affirms the decision of the respondent dated 14 June, 1996.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 13 August, 1996, the applicant, Mrs Shirley Lorraine Robotham (then known as Shirley Lorraine Lawless), applied for review of a decision of the respondent, Comcare, dated 14 June, 1996. In that decision, Comcare had revoked its earlier determination dated 20 December, 1995 accepting liability for aggravation of a pre-existing spondylolisthesis. The application for review of Comcare's decision was heard and decided by a differently constituted Tribunal on 9 April, 1998. An appeal from that matter was allowed by the Federal Court without adjudication on 1 February, 1999 and remitted to the Tribunal for re-hearing.
At the re-hearing, Mr Kelso of counsel represented Mrs Robotham and Miss Ford of counsel represented Comcare. The appeal book to the Federal Court was admitted in evidence together with a letter dated September, 1989 from the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (as Comcare was previously known) to Mrs Robotham, notes of Dr Moore dated 24 May, 1988 relating to Mrs Robotham (who was then known as Shirley Lorraine Flood), a report of Ms Lesley Stephenson dated 29 July, 1999 and a Department of Veterans' Affairs form completed on 29 February, 1988. Mrs Robotham gave evidence in support of her case together with Mr Charles Baldrey. Dr John Morris, orthopaedic surgeon, was made available for cross-examination by Miss Ford.
BACKGROUND
We find that Mrs Robotham enlisted in the Australian Army on 7 August, 1985 when she was 17 years of age. During her first three months, she undertook basic training and then chose a career as a steward. After training, she achieved the rank of private. She was discharged on 16 May, 1988 as a result of being classified as medically unfit.
There is no dispute between the parties on several issues and we have made several findings in light of that and on the basis of the evidence. We find that Mrs Robotham suffers from spondylolisthesis of the fifth lumbar vertebra and that her spondylolisthesis did not arise out of, or in the course of, her employment in the Army in any way. We also find that Mrs Robotham fell backwards from a picnic table on 31 October, 1986. Finally, we find that she suffers from episodes of pain from her spondylolisthesis.
THE ISSUE
The issue in this case is whether the symptoms of pain from which Mrs Robotham suffers arose out of, or in the course of, her employment with the Army. That requires us to consider two issues: whether the episodes of pain which she has suffered since her fall on 31 October, 1986 have been caused by her fall; and, if so, whether the fall arose out of, or in the course of, her employment.
THE EVIDENCE
Mrs Robotham
Mrs Robotham said that she had never suffered any ailments before her enlistment in the Army. She described her basic training as very physical. She would rise before 6.00am for a full inspection at 6.30am. Each day, she went on a five kilometre run and completed an obstacle course followed by eighty sit ups in two minutes. For one two week period, she was required to live in a pit in the bush. She had to carry all of her gear including webbing, water bottles, pistol, magazines and sleeping gear. At the end of the three month training course, there was a 20 kilometre event. By that time, she had also learnt how to use a self loading rifle, a pistol and grenades. Mrs Robotham said that she was exceptionally fit by the end of the course.
Following her basic training, Mrs Robotham went to Puckapunyal to train for a further three months as a steward. She learned correct manners and how to make drinks and lay tables as well as a little bit of cooking. At the end of the course, she received a certificate and, at the end of January or early February, 1986, was posted to Broadmeadows in Victoria. She lived on the base. At Broadmeadows, she started by serving meals and washing dishes in the Sergeants' Mess. This was followed "pretty soon" by serving drinks at the bar in that mess. Her supervisor for the first three months in the Sergeants' Mess was Sergeant Baldrey. She remained there for approximately a year and was then transferred to the Officers' Mess where she worked mainly in the bar but also assisted with serving meals if the civilian staff did not report for duty or if there was a function. Sergeant Baldrey had moved to the Officers' Mess some nine months previously and was again her supervisor.
During the course of her evidence, Mrs Robotham was asked by the Tribunal about the time she had spent in the Sergeants' Mess and in the Officers' Mess. She agreed that she had been in the Sergeants' Mess for ten to twelve months and had been posted to Broadmeadows at the end of January or early February, 1986. If that were so, she agreed that she would have been in the Sergeants' Mess when she had the fall on 31 October, 1986. She was adamant, however, that she had been in the Officers' Mess for three months when the fall occurred. Mrs Robotham said that perhaps she had spent six months in the Sergeants' Mess. When asked how good her memory was, she replied "not good". Mrs Robotham said that Sergeant Baldrey had been the supervisor of the Sergeants' Mess for the six months that she was there. They did not transfer to the Officers' Mess at the same time but she transferred within a few weeks of his doing so.
Mrs Robotham ran the bar at the Officers' Mess. She said she only did stewarding at functions. Bar work, Mrs Robotham said, required her to know wines, proper serving techniques, cocktails and how to stocktake. The workload in the Officers' Mess was not quite as demanding as in the Sergeants' Mess. If she was required to stocktake, her day would start at 6.00am and the exercise would take her two hours. That occurred once each month. Once each year, there was a larger stocktake which took a day to complete. If she was not required to undertake a stocktake, she would start work at 8.00am. Her day was supposed to finish at 10.00pm regardless of her starting time but, if an officer wanted the bar left open, it had to be left open. The shifts were long as the roster worked on the basis of two days on and two days off unless there were a function. If there were a function, Mrs Robotham said, she would be required to work even it were a rostered day off. She could then work until 2.00 or 3.00am. At the end of her day, Mrs Robotham said, she would make sure the bar was clean, count the takings, lock it away in the safe under the supervision of the duty officer and make sure the bar was secure.
Unless there were a function, the sergeants, Mrs Robotham said, worked the day shift from 8.00am until 4.00pm. If there were a function, they would work the whole function with the stewards. In all messes, dinner was served by 7.00pm. If one was working in the dining room at the Sergeants' Mess, Mrs Robotham said, one could "get out by 7.30 or 8.00."
On 31 October, 1986, Mrs Robotham said, she was working behind the bar at the Officers' Mess. When 7.00pm came, she had a break of half an hour. At the time, she had a boyfriend and so went to see him at the Other Ranks mess. She had a lemon squash while sitting at a big table which was something like a picnic table. Three girls sat on one side. Mrs Robotham said that she had her leg wrapped around the seat. At about 7.15pm, the three men who had been sitting on the other side of the table got up. The table tipped and landed on Mrs Robotham. Her back hit the corner of the concrete slab and it "hurt like hell". She said that she was lying there in the "most horrific pain" and with the table lying on top of her. The table was lifted from her.
Mrs Robotham said that, apart from the fact that he forgot to count himself as one of the people who got up from the table, she agreed with the statement of Mr Neil Ronald Lawless, who later became her husband, as to how the accident had occurred. After reporting that Mrs Robotham had said that she suffered pains in her lower back, he said in his statement dated 2 March, 1988:
"During the night we where (sic) in the beer garden sitting on the outside garden setting. Two people left the seat what Pte Flood was sitting on with them, the seat raised. Pte Flood then fell onto the pavement." (Exhibit 1, page 57)
Mrs Robotham completed a report of her injury on 3 February, 1988. She described her injury as a "fall injured lower back" (Exhibit 1, page 58). She described the injury as occurring in the following manner:
"I was sitting on conected (sic) table and chair with others, when others stood up table fell over, me with it. Because of 14 hr shifts at work and compulsive physical training my back ache worsened."
She had also added: "Injury didn't occur during working hours although long hours & physical training aggravated the problem." (Exhibit 1, page 58)
That form was accompanied by a form completed by the officer in charge. He did so on 29 February, 1988 and noted that the injury had been officially reported on 1 November, 1986. One of the questions on the form asked him to tick whether the employee was, at the time of the accident: "On duty. Stand down time being at … hours on …; Was free to leave his place of employment; Off duty. Having been stood down at … hrs on …; On leave from … hrs on … to … hrs on …; or Was not free to leave his place of employment" (Exhibit 1, page 59). The officer in charge wrote that Mrs Robotham was off duty having been stood down at 1900 hours on 31 October, 1986.
Mrs Robotham said that she did not recall then, and still does not recall, having lodged a claim on 24 February, 1988. In the claim form which she signed, Mrs Robotham had written:
"Fall from conetting (sic) table & chair. Although after hours pain has occured (sic) due to long 14 hr shifts and compolsive (sic) Army training." (Exhibit 1, page 55)
In giving her oral evidence, Mrs Robotham said that the fall had not really happened after hours but she was on a break. She had been told what to write. "After hours" does not mean to her "after finishing work" but just meant she was not on duty but on a break.
In cross-examination, Mrs Robotham agreed that, during the previous hearing, she and Miss Ford had been told to agree facts that were not in dispute between them. Her attention was drawn to a document headed, "Agreed Facts" prepared at that time. It included a statement that "The applicant had knocked off duty at 1900 hrs on 31 October." (Exhibit 1, page 82). Mrs Robotham did not agree that this was not in dispute. It was in dispute the whole time, she said. She was still in uniform and so was still working. Mrs Robotham denied that she sometimes effectively knocked off work at either 7.00 or 7.30pm. "Not at the Officers' Mess", she said. Mrs Robotham recalled that she had not knocked off work at that time. Mrs Robotham said that she had always said that she was on a break. She had never said that it had happened during working hours. When it was suggested that she had never said at that previous hearing that she was just on a normal meal break, she said that she did not recall. Mrs Robotham said that she did recall being asked by the previous Tribunal about whether she was on call. She recalled saying that she was on call 24 hours each day if the Army wanted her. If she was not off the base or on holidays, she was working.
At the previous hearing, the following exchange had taken place between Mrs Robotham and the Tribunal:
"MRS LAWLESS: If that does happen – if they have a function or something, I am phoned. That is why living on base, as a steward – they preferred you to live on base anyway because they could contact you easily. I was contacted quite a few times. That is why when I left there, I did not drink; I had lemon squash at evenings.
THE D. PRESIDENT: You were not having a beer?
MRS LAWLESS: No, I do not drink beer. I do not drink at all now. I did drink when I was in the Army but that night, in particular, I only had lemon squash.
THE D. PRESIDENT: I see.
MRS LAWLESS: That is why I believed – that is why I always thought I did not really finish work because I said, 'I've only had lemon squash.' I had only had the one before the fall. I had not even finished that drink. I had just finished work and I used to always go to the 'boozer' straight after work, have one drink - - -
THE D. PRESIDENT: And you were on-call that night?
MRS LAWLESS: - - - and then go to the mess. We ate there. We had to stay there and then we – like, I used to go there, have a drink, and then go to the mess to eat my evening meal.
THE D. PRESIDENT: I see.
MRS LAWLESS: That was a routine.
PROF SMITHURST: You were on-call for - - -
MRS LAWLESS: You are always on-call. In the Army you are paid 24 hours a day. That is what we are told. They ring him at home even now and we are married. And they will ring him if they want him to go and do fire fighting or anything like that. They say that we are paid 24 hours day.
PROF SMITHURST: Were you called out very often to go to the Officers' Mess?
MRS LAWLESS: At Broadmeadows, no, but in Randwick I was called out a lot. At Broadmeadows, I was probably called out probably three, maybe four, times in the time I was there. But at Randwick, I worked a lot of hours and I was called in quite a few times.
THE D. PRESIDENT: Okay.
MISS BRENNAN: Could you have gone down to the local town to have your drink?
MRS LAWLESS: No, I – well, I was only 19 at that stage and I do not even know – did I have my car then? I think I might have only not long had a car or only just got the car, my first car, and at that – as soon as I finished work – to go to the local shop, I would have had a go get in my car, get changed, because you are not allowed to go out in the uniform. I was still in my uniform. You are not allowed to leave the base in your uniform without permission. So I just - - -
MISS BRENNAN: But you would have been free to go and get into secular clothes - - -
MRS LAWLESS: To get changed, then go in my car, if I wanted to go out somewhere I could.
MISS BRENNAN: You could. There was no restriction - - -
MRS LAWLESS: But we never did. We usually stayed at the base.
THE D. PRESIDENT: Okay.
MISS BRENNAN: Did you have to tell people where you are going?
MRS LAWLESS: It all depended. As I said, if we were doing – like, we did not have to tell them if you were going to – if you were going away you did.
You had to fill out leave apps. …" (Exhibit 1, pages 162-163)
After reading this passage from the transcript, Mrs Robotham said that she believed that she was going back to work. That was so if she was still in uniform and on base. She could not have been on a meal break as she never went to the Other Ranks Mess for a meal. If she had an evening meal, it would have been at the Officers' Mess. At the original hearing, after a discussion had ensued about the law, Mrs Robotham said:
"Excuse me, sir, another thing; me and my husband have been talking about it and I would like to give my boss a ring because I am sure that that day I was still in my uniform and having squash because I had to go back to work. I am sure I was only on an evening break and I believe that the captain may have made a mistake, and I am sure I had to be back at work because I was bar – I was working the bar; it did not shut till 10 and I used to always have my break from 7 till 7.30." (Exhibit 1, page 177)
At the first hearing, Mrs Robotham had been asked by Miss Ford as to the meaning of the expression "after hours". The following exchange took place:
"What do you understand by 'after hours'; the term 'after hours'? After your designated shift? --- After hours is when you're in the army and you live in – I mean, you're paid 24 hours a day anyway.
I understand that, but I just want to know what you mean by the term 'after hours'? - - - After hours is when you have, like - - -
Finished you shift? - - - finished for the whole day. Like, at 10 o'clock at night or whatever when you're going to bed.
What do you understand by the term 'off duty'? - - - It means that you're not working: but as I've also stated, 'off duty' in the army doesn't mean a thing. They can ring you up at any time and call you in, as Sergeant Baldrey will - - -
Sure. That means you are on call, does it not? You can be off duty and on call? - - -? Yes, that's why they say in the Army you are paid 24 hours a day, because you're always on call when you're in the Army.
Sure. But you understand off-duty to mean that your 10 to 10 shift is finished. Is that right? - - - Yes, unless, of course, there is (sic) functions. As I said, you can work - - -
And on-call just means they can ring you up and ask you to come in at any time? - - - Yes.
All right. What do you understand by the term 'stood down'? - - - Stood down can mean for a meal break, it can mean for - stood down usually does mean meal breaks or stood down for the evening, if you've finished work as well. But it can also be for meal breaks and that as well.
But stood down in terms of off duty, means that it is after - - - ? ---Usually they don't say stood down; they say usually off duty. Usually stood down is mainly used when you're stood down for a meal, to my knowledge." (Exhibit 1, pages 191-192)
In cross-examination, Mrs Robotham agreed that this continued to be her understanding of the meaning of the expressions.
In re-examination, Mrs Robotham said that she had first heard the term "stood down" during her basic training. It could mean stood down for a meal or for the night and was used for a number of different things. The term could even mean that a person had been discharged from the Army. By saying "after hours", she said that she meant she was not working at the time.
Mrs Robotham said that she did not remember much after the accident and for the next couple of days. In giving her evidence, she said that she was "pretty sure" that Sergeant Baldrey went in from home and worked her shift. She was scraped, there was blood and she was "pretty swollen". She thought that she went to hospital and was required to have bed rest. Mrs Robotham said that she was in "pretty severe pain" and could hardly walk. She remembered being X-rayed and thought that occurred at Heidelberg. Whether she was X-rayed on the first evening or a few days later was not something Mrs Robotham could recall. The spondylolisthesis was revealed on the X-rays. Her treating doctor at the time was Dr Wellsted. He treated her first on 31 October, 1986 and later on 7 November, 1986 (Exhibit 1, pages 7-8).
When asked how many days passed before she was able to return to work, Mrs Robotham replied that she was not sure and could not remember but thought about four or five. Mrs Robotham said that she undertook light duties on her return. Those duties required her to do paperwork and to answer the telephone for a medical unit. She then returned to the bar at the Officers' Mess but performed only light duties. Lifting beer was something she could not do and she had to ask another to stack the refrigerator for her. That situation continued for approximately a month. During this time, she said that she was required to attend a two week camp in the field as she was a soldier first and a catering person second. She was unable to go. Mrs Robotham was officially on light duties for about three months but, even when that period had concluded, Sergeant Baldrey did not want her to do too much.
Mrs Robotham said that the Army categorises its personnel into three levels of fitness: "FE" which means "fit everywhere"; "CZE" which means "communication zone everywhere"; "BMS" which means "below medical standard" and "MU" which means "medically unfit". Immediately before the accident, she had been classified as FE. Some time after the accident, she was re-classified as CZE, then as BMS and finally, on discharge, as MU.
Dr Wellstead completed a medical attendance and treatment report on 31 October, 1986. He noted that Mrs Robotham had fallen on her back and was tender in her lower spine. She was prescribed Brufen for a week and marked "fit for restricted duty" (Exhibit 1, page 7). Dr Wellstead's comment as the nature of the restriction is not legible. Dr Wellstead completed a report on 6 November, 1986 and noted that Mrs Robotham was fit for restricted duties and could attend a bush exercise in sedentary type of duties. She was unfit for field training (Exhibit 1, page 9). He noted that she was to be reviewed on 2 November, 1986. On 7 November, 1986, Dr Wellstead recorded a diagnosis of spondylolisthesis for the purposes of a Medical Board Examination Record (Exhibit 1, page 8). He noted that there was a "vague history of minor episodes of low back pain" (Exhibit 1, page 8). In re-examination, Mrs Robotham said that the comment that she could perform sedentary duties on the bush exercise was strange as her boss had told her that there were no such duties on a bush exercise.
Dr Wellstead referred Mrs Robotham to a specialist, Dr Shannon, for his opinion. In Dr Wellstead's referral, he noted that Mrs Robotham was "relatively symptom free & is efficient steward" (Exhibit 1, page 10). The specialist reported on 17 March, 1987 that he did not agree with Mrs Robotham's automatic relegation to BMS because of spondylolisthesis. Her back was symptom free and clinically sound. There was an increased risk of injury. (Exhibit 1, page 10) In cross-examination, Mrs Robotham said that she did not recall the assessment. She was still experiencing a considerable amount of backache at the time although she could work. She told them that she had a constant backache. When it was suggested to her in cross-examination that her memory had faded as time has passed, she replied that she knew that she had a dull ache since the fall. She knew that, she said. Mrs Robotham said that she could not recall where she felt the pains most. She could not recall being symptom free and she could not recall seeing Dr Shannon some thirteen years ago.
After about two or three months, Mrs Robotham continued, she started to get a lot better and her fitness category was upgraded again. In cross-examination, she agreed that it had been upgraded from BMS to CZE by April, 1987. Her boyfriend was then posted to Sydney. She applied for a similar posting and was posted to Randwick in November, 1987. That was when her troubles really started, she said. At Randwick, she was not assigned to bar duties but started stewarding in the combined Officers' and Sergeants' Mess. She started at 6.00am and worked until 8.00pm. If there were a function, she would work through and there were functions for both officers' and sergeants' messes, paid functions and functions for another unit. She found that she had hardly any time off. Her duties included stacking the dishwasher, lifting baskets, sweeping and vacuuming and cleaning up so that all was spotless. It was, she said, "a nightmare there".
Mrs Robotham said that she had a dull backache even at Broadmeadows but it was exacerbated at Randwick. She was "in agony" and at the doctors all of the time. Mrs Robotham said that she was unable to cope with the physical aspects of the job at Randwick. She suffered from a constant low backache and had a very sore back at the end of every shift, she said. After each shift, she had to rest a lot. For about four or five months of her time at Randwick, she was put on light duties. Those duties required her to get the caterer's coffee and take papers from one place to another. She said that she felt very downgraded there and that other stewards threw food at her.
Mrs Robotham said that she fought her medical discharge but she was told that she was not medically fit to be a soldier and was a bit of a hazard. In February, 1988, her fitness category was reduced from CZE. She was discharged on 16 May, 1988. Mrs Robotham said that she was not told by the Army that she was entitled to compensation and was just sent to Dr Gallagher. She recalled being seen by him for about 15 or 20 minutes. She said that she asked about compensation but he told her that she should be right to resume any job she wished after about three months' rest. She said that she did not do that as she became pregnant to her boyfriend whom she had followed to Randwick. Mrs Robotham married him instead of resuming work.
Mrs Robotham was referred to a specialist again on 24 February, 1988. The referral noted that she had been symptom free until the previous three months. The specialist noted that her lower back pain had been worse in the previous three months. Her spondylolisthesis was noted and she was to be reviewed three months later. (Exhibit 1, page 11) In cross-examination, Mrs Robotham said that she agreed that her back started playing up when she was posted to Randwick but did not agree that she was symptom free before that; she had suffered from constant back ache. She was not symptom free.
In cross-examination, Mrs Robotham said that she could not recall seeing Dr Moore just after her discharge from the Army. Dr Moore had recorded in his notes: "Pain in lower back … First noticed end of 1987 when posted to Randwick. Never had back pain before this " (Exhibit 3). Mrs Robotham said that this statement was not correct and she had not first noted the pain in 1987. She had said that the pain got worse at Randwick. Also in cross-examination, Mrs Robotham denied that she had told Dr Moore, as he had recorded in his notes that:
"Pain in lower back
First noticed end of 1987 when posted to Randwick. Never had back paid before this.
Pain has increased steadily. Became a daily occurrence and interfered with work – about end of February 1988." (Exhibit 3)
She also denied that she had not mentioned the fall to Dr Moore as she knew that it had occurred outside working hours. That was not true as she had always mentioned the fall. She had never suffered any back problems or any other problems before the fall. The pain came and went.
Mrs Robotham said in giving her evidence that she did not receive a letter dated September, 1989 from a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (Exhibit 2). That letter advised her that liability to pay compensation in respect of aggravation of spondylolisthesis ceased with effect from 16 May, 1988, which was the date of her discharge from the Army. He had based his decision on reports of Dr Gallagher dated 2 June, 1989 and 1 August, 1989.
During her pregnancy, Mrs Robotham said, she suffered from constant backache. Usually, it was bad and it was a little bit worse towards the end. She suffered from other conditions during her pregnancy and her back was only one of the small things that was happening at the time, she said. Her baby was born two months prematurely on 8 March, 1989 but died in July.
She and her then husband moved back to Melbourne as he was posted to Broadmeadows. Mrs Robotham said that she worked as a civilian storeman in the Army and was supposed to work for a three month trial period. She had a medical certificate as to her fitness and thought that her back had settled down. Her back began to swell and ache and she went home in tears. Rather than lasting three months, she lasted only two weeks in the position before having to give it up. She resigned from her position as a civilian storeman in November, 1989. One of her reasons for doing so was her back, she said, and she thought that she said something else as well.
In December, 1990, Mrs Robotham gave birth to her second child. Towards the end of the pregnancy, her back was "pretty sore" but she did not suffer any other complications. Her doctor told her that most women have back problems. She did not suffer much additional back pain during her first two pregnancies. Her final pregnancy, which led to the birth of twins in 1993, led to her hospitalisation for ten weeks. Her back was very bad and her Aunt had to care for her son for five months.
Mrs Robotham summarised her back condition since leaving the Army. She suffers from constant low back ache. The pain can range from moderate to horrific. It has been a lot worse since the birth of the twins. Since then, its minimum level is a lot worse than the minimum level of pain she suffered after the fall. When she left the Army, she did not take Panadol but has needed to take one or two after the birth of the twins. She now takes three or four Panadol each day and that number can "skyrocket" when the pain is bad.
Mrs Robotham said that she had been seeing a consultant physician, Dr Ian Pike, since 1993. He has recommended physiotherapy to strengthen her back muscles but that aggravated her back pain. She is not keen on it. The twisting motion required by swimming also hurt her back. She never suffered from a weight problem before she hurt her back but has one now even though she eats like a rabbit. She has to walk to keep her back active and to rest. Mrs Robotham said that she has cut down on the heavy household chores. She said that she has been advised not to have any more children.
Mrs Robotham lodged a claim for compensation on 20 December, 1995. She did not recall applying for a pension under the Veterans' Entitlements Act 1986 but does receive a pension. In cross-examination, she was asked about what she had written on her application for a pension dated 29 February, 1988. On that form, she had written 31 October, 1986 in response to a question as to when she had first noticed the disability she was claiming (Exhibit B).
Mr Baldrey
Mr Baldrey enlisted in the Army in 1972 and was discharged in September, 1992. He had held the rank of Sergeant and was a Mess supervisor in the Army. In 1985, he had become Sergeant in Charge at Broadmeadows. He held that position when he first met Mrs Robotham at Broadmeadows. He would have been her supervisor when she had been working in the Officers' Mess. At the time of the hearing, he was the Food and Beverage Manager at the Mt Steward Officers' Mess at Laverack Barracks.
In cross-examination, Mr Baldrey said that he went to Broadmeadows at the beginning of 1985 and was first in charge of the Officers' Mess. He held that position for approximately twelve months. He then moved to the Sergeants' Mess and could have remained there for the rest of the term. He knew that he was in charge of Mrs Robotham in both Messes.
In giving evidence, Mr Baldrey said that there was a roster system at the Officers' Mess and it was usually two days on and two days off with a long weekend. Civilian staff worked in the dining room and Army personnel worked the bar. The dining room shift finished at 7.00 to 7.30pm. The bar shift started at 1000 hours and finished at 2200 hours. The steward was required to be at the bar during those hours, re-stock the refrigerators and serve customers. Mr Baldrey undertook stocktaking. At Broadmeadows, Mr Baldrey was not required to be present during the same hours. He worked from 8.00am until 4.00pm but worked longer hours if there was a function or happy hour. A happy hour occurred on the Friday of a pay week. Mr Baldrey said that bar shifts never ended at 7.00pm. They always finished at 10.00pm when the bar closes.
Mr Baldrey said that the Officers' Mess does not close. Dinner is served anywhere between 6.00 and 7.00pm or 6.30 and 7.30pm depending upon the Mess. No meals are available after the dinner hour. Similar hours are applicable in the Sergeants' Mess. In the Other Ranks' Mess, the dinner hour is much earlier and would be between 5.00 and 6.00pm or 5.30 and 6.30pm. Civilian staff had their meal breaks either before or after the dinner hour as they had to serve the meals. The bar is closed for the half hour of the meal break. If there was a function, the bar staff would not be stood down for a meal break. They worked right through the function. When there was a meal break, Mr Baldrey said, the meal was provided by the Officers' Mess but the staff could choose to eat where they wished. He made no stipulation as to where they should eat. Common sense dictated that they ate where they worked.
The term "stand down", Mr Baldrey said, could mean that a person was stood down for a meal break or stood down for the end of the day. The term "off duty" means that a person is not working; he or she could not be on a tea break.
With regard to the relief system for bar staff, Mr Baldrey said that the bar would be closed for half an hour so that the bar staff could have a meal break. Lunch was taken after the Mess lunch time but, at dinner time, the dinner break was taken during the meal time. If the dinner hour was 6.30 to 7.30pm, the break would be from 6.30 to 7.00pm.
In cross-examination, Mr Baldrey said that Mrs Robotham would not finish her shift at either 7.00 or 7.30pm if she were doing bar work. He agreed that she also did dining room work to assist. If she were in the Sergeants' Mess dining room, she would finish about 7.30pm. Sometimes, she worked in the dining room in both Messes.
Medical evidence
Dr Pike
Dr Pike, who is an orthopaedic surgeon, wrote a report to Comcare dated 26 June, 1996 regarding Mrs Robotham. He first saw her in 1993 while she was a patient in the Obstetric Unit at the Wodonga District Hospital. She was having twins and was experiencing severe back pain. Dr Pike related her symptoms to lumbo-sacral spondylolisthesis. Mrs Robotham told him that her symptoms started during her period of service in the Army. She told him, he wrote, that she had been injured in a fall in 1987 and that she had continued to suffer with intermittent back ache over the next few years.
Dr Pike reported that:
"DIAGNOSIS Mrs Robotham suffers from chronic back pain, which relates to an aggravation of the condition of Spondylolisthesis at L5/S1 and, also, to disc degeneration at L4/5.
2. CAUSATION It would appear that her symptoms were precipitated by a fall that occurred during the course of her service with the Australian Army. Mrs Lawless stated that the fall occurred in 1987. (I note from Mr Doig's report that an injury is said to have occurred in October, 1986). I believe that the fall that Mrs Lawless described initiated her present symptoms. She said that she had suffered no previous back pain prior to that incident.
Her current condition is not a natural progression of Spondylolisthesis and her current disability appears to relate to that specific episode of trauma.
The condition is not, to my knowledge, caused by some other factor." (Exhibit 1, page 77)
In giving evidence, Dr Pike confirmed that the history he had obtained from Mrs Robotham was that she was free of back pain before the accident which he had noted had occurred in 1986. He did not question her deeply about whether she was suffering intermittent back pain from that time until the date of her discharge from the Army in 1988. He would have presumed that to be the case as she was discharged because she was medically unfit. He was not provided with any documents from her medical files relating to her service in the Army.
Dr Pike said that there are people who have spondylolisthesis who have no back pain and others who have the full spectrum of pain. There is no need to have suffered a trauma to suffer pain from spondylolisthesis. The onset of pain can occur at any time but the most common age for it to occur is between 20 and 40 years.
Dr Pike described the condition of spondylolisthesis and its effect on discs in the following exchange with Miss Ford at the first hearing:
"Doctor, are you of the view that the underlying condition of spondylolisthesis can cause the disc above the slipping disc to become degenerate because of the extra pressures involved? --- Well, normally the disc that is degenerate is the disc at the level of the spondylolisthesis and in this case it is a little bit unusual that the next disc up above is degenerate as well. We did an MRI scan to look into that aspect, mainly to see whether we could treat her back pain by fusing the affected level and it came as something of a surprise to find that the next disc up was degenerate.
But, nonetheless, it was not inconsistent with this pathological condition of spondylolisthesis? --- Normally the disc at the level of the slip is the one that suffers the mechanical problem and that is normally the degenerate disc and under most circumstances the disc above would be a normal disc, especially in a young person.
But have you seen patients, doctor, where the disc above, in a spondylolisthesis case has also been degenerate?--- Yes, I have, yes.
Now, the degenerate disc itself can be one source of pain, can it not?--- It can, yes.
As well as this condition of spondylolisthesis, even if there is no degenerate disc at all, that can cause pain I think you agreed? --- That's right.
And in a person who has spondylolisthesis and also a degenerate disc, there are a number of activities that will cause them pain because – in many people, do you agree with that?--- Yes.
Such as persons who have this condition who take long car trips often suffer severe pain because of their underlying condition? --- Well, if the problem is symptomatic, then postural changes can provoke the back pain, is that what you're asking?
Yes, and the same with pregnancies? --- Yes.
And the same with lifting young children? --- Yes, but I'd had to say that quite a lot of people with spondylolisthesis could do all those things and have no pain.
Certainly, but in somebody where symptoms have come on those sorts of activities can make the symptoms worse? --- That's correct, yes." (Exhibit 1, pages 151-12)
In response to a question by Mrs Robotham at the first hearing as to whether her fall could have caused the disc above the spondylolisthesis to degenerate or the spondylolisthesis to slip more, Dr Pike said:
"No, I don't think the fall did – the fall definitely didn't cause the spondylolisthesis. That's a developmental problem and I don't think it caused the disc to be degenerate. That's not my experience, at least that a single fall like - –he disc to become degenerate. I think probably what happened is that you've got a couple of pre-existing problems in your back and I think quite minor injuries, or activities, are sufficient to provoke the symptoms." (Exhibit 1, page 157)
Dr Pike told Mrs Robotham that he had assumed that she had not suffered from pain before the time she fell, that her pain started in an intermittent way and that, after that, her pain became progressively worse. Once people have chronic back pain, a number of factors make it worse. Those factors would include standing for a long period of time or lifting a lot.
When asked by Miss Ford for his opinion on the assumptions that Mrs Robotham had a vague history of minor episodes of back pain and was found by a specialist to be symptom free in March, 1987, Dr Pike replied that he could not comment upon that sort of information. He did not know who had prepared it and he did not know whether those who had done so would make a satisfactory assessment of chronic back pain. He could only comment on things he knew about and could not comment upon another person's opinion. He did, however, respond that it was more probable when he was asked to assume the accuracy of the propositions in the following question:
"If a specialist orthopaedic surgeon examines her and finds that she is symptom free and that then there is a later development of pain, in the absence of trauma, is it not more probable on those facts that it is a spontaneous development of symptomatology." (Exhibit 1, page 155)
Based on his own understanding of the case and not of the matters put to him by Miss Ford, Dr Pike said, he still held the view that her current incapacity relates to the injury which occurred during her Army service.
Dr Morris
Dr Morris, who is an orthopaedic surgeon, had prepared a report dated 16 April, 1997 (Exhibit 1, page 86) and had also given evidence at the previous hearing in the Tribunal. In his report, he set out the history of Mrs Robotham's injury and the symptoms from which she has suffered. He noted that Mrs Robotham had told him that she had not previously suffered low back pain but that there was a reference to a vague history of such pain in the report written on 7 November, 1986. Dr Morris summarised the history and his response to the questions he had been asked in the following passage:
"Shirley Lawless was involved in an injury when she fell back and hit her back on a beam. This type of injury, I would have thought, would have produce (sic) localised bruising mainly. She then had intermittent pain over the next few weeks and after working at Randwick her symptoms became much worse. That was nine months after her accident. After leaving the army her symptoms settled until she returned to work as a store person, when her symptoms became bad again and since that time her symptoms have been bad, particularly when she has been pregnant and she has been suffering much worse since she had her twins.
In reply to your questions:-
1. Shirley Lawless suffers from a degenerate disc at L4/L5 and a spondylolisthesis at L5/S1.
2. (c) This is a natural progression of a pre-existing or underlying condition.
3. The work that she was doing at Randwick and when she went back as a civilian in to the army, may have had an aggravating effect, but no more than having her children.4. Her pregnancies have aggravated her condition.
OPINION & PROGNOSIS CONTINUED:
The effects that she had of the fall in 1986 would have been of a temporary nature and would have ceased within about three months of her injury. She would not be capable of working at the moment, due to the pain from her degenerate disc at L4/L5 and her spondylolisthesis. These restrictions are not due to the employment factors but are due to the underlying naturally occurring degenerative cause. It is quite common for spondylolisthesis to become symptomatic as a person reaches the early twenties and for the disc above to become degenerate at a later state. I think that she had some symptoms from her spondylolisthesis in 1988 or 1989. I think most of her symptoms over the last four years would probably relate to the degenerative disc above." (Exhibit 1, pages 87-88)
In giving evidence at the first hearing in the Tribunal, Dr Morris explained the condition of spondylolisthesis in the following exchange between him and Miss Ford:
"That is a condition which is probably acquired at a very early level in life, where the – between the bones holding the vertebrae together so the stress goes on the disc instead of on to the bone at the back and over a period of time, the vertebrae above can slip forward 2 or 3 millimetres.
And had that got any relationship, doctor, to the degenerative disc that you have found at the L4-5 level?--- That is relatively because of the stress going on to the disc. The disc becomes degenerate.
And the spondylolisthesis is at the L5 S1 level? --- Yes, the tract – the spondylolisthesis goes on to the L4, L5 disc. It is sort of like lines where the L4, L5 disc goes through the L5. (indistinct).
So the L4-5 is just one above this disc that is slipping forward?--- It has been observed that it is slipping forward, yes." (Exhibit 1, page 116)
Dr Morris confirmed in his oral evidence that the injury in 1986 would have caused a temporary aggravation that would have ceased within three months. The problems she later suffered would have been as a result of the spondylolisthesis and also related to the degenerative disc. Even if Mrs Robotham had not suffered any significant prior low back pain, Dr Morris indicated that he would not have altered his view. That is "… because you can be post-traumatic and then get symptoms from a spondylolisthesis and a degenerative disc". Without any trauma at all, a spondylolisthesis can begin to make its presence felt. That is what happens with most people and it usually does so at some time between the ages of 20 and 40 years. Some people can have spondylolisthesis and go through their entire lives without pain but he could not explain why that would be so.
Dr Morris acknowledged that his opinion differs from that of Dr Pike. He said that Dr Pike's view had merit if Mrs Robotham had continuing pain that gradually worsened "although you might just say that the fall brought forward something that she might have got in the future" (Exhibit 1, page 118). Her condition is such that she can have episodes of pain and then times when she is virtually pain free. The break in symptoms, however, supports the view that there was no ongoing effect. If she had suffered a direct injury such as a fracture of a bone or a disc rupture, it would be expected that her symptoms would remain constant. It would be quite severe and then perhaps get better or not. Mrs Robotham was found to be symptom free in March, 1987. The pattern of her pain is attributable to spondylolisthesis.
In answer to questions from the Tribunal at the first hearing, Dr Morris explained his opinion further in the following exchange:
"PROF SMITHURST: Dr Morris, I am a bit puzzled about the pathology of how a fall can cause symptoms and aggravate spondylolisthesis, particularly a fall in which a person falls backward against a solid object, in this case apparently a concrete wall. Could you explain how that can aggravate the symptoms of spondylolisthesis or - - -
THE D PRESIDENT: Trigger them.
PROF SMITHURST: - - - rather than causing just straight bruising?--- Oh, I think that she had after her initial fall may not have been due to the back spondylolisthesis. Her pain from the spondylolisthesis may have developed months later. Initial pain – I've just been read, as you say – well, that is – she did have an extended back when she fell and that doesn't seem to, if you like, stir up a spondylolisthesis defect. So it may not have been – the initial pain she had may have had very little relationship with spondylolisthesis and degenerate disc.
Could the fall have caused a greater separation, for example, in bone – spondylolisthetic bone or could the fall have precipitated the beginning of disc prolapse? I know these are somewhat pathological questions but I wonder whether you - - -? --- Well, the MRI didn't show a disc prolapse; it shows the disc was degenerate. There wasn't a great deal of bony separation. It's unlikely that trauma does produce – just one episode of trauma produces bony separation." (Exhibit 1, page 119)
Dr Gallagher
Dr Michael Gallagher, orthopaedic surgeon, wrote in a report regarding Mrs Robotham on 2 June, 1989 that the incident of 31 October, 1986 had led to Mrs Robotham's suffering from a temporary aggravation of her spondylolisthesis of the fifth lumbar vertebra, grade 1. The effects were of a temporary nature and had ceased as from 2 June, 1989. In his report, he noted no symptoms of pain in her back prior to 31 October, 1986. (Exhibit 1, page 70)
Dr Doig
Dr William Doig, orthopaedic surgeon, noted that Mrs Robotham had not suffered any pain in her back prior to her joining the Army but suffered pain immediately after she fell on 31 October, 1986. He concluded that Mrs Robotham suffered from a strain of the areas of pseudarthrosis that occur when a person has spondylolisthesis. That had occurred as a result of the injury she had in October, 1986. He did not believe that her spondylolisthesis had been caused by her work but stated that:
"I believe the pain that she has is an aggravation of her troubles from her spondylolisthesis. In the case of spondylolisthesis, there is often a non-union of the pars interarticularis, in this case of the 5th lumbar vertebra and this can be affected by a definite injury. This occurred in October of 1986 and has occurred at various times since, when she has been on her feet too long, such as when was in Randwick in 1987.
3. Spondylolisthesis in itself does not necessarily cause symptoms and many, many people go throughout life with a spondylolisthesis with no symptoms whatsoever. I do not believe, therefore, that this is a natural progression of her underlying condition.
4.I believe her symptoms have been caused by the actual injury which she had in 1986.
PERMANENCY
5.It does not appear that her symptoms have become permanent". (Exhibit 1, pages 19-20)
Ms Stephenson
Ms Stephenson is an occupational therapist who prepared a comprehensive report dated 29 July, 1999. In that report, Ms Stephenson canvassed the occupations which might be open to Mrs Robotham but concluded that she doubted whether Mrs Robotham could sustain them. (Exhibit A)
CONSIDERATION
The event to which Mrs Robotham attributes her condition occurred on 31 October, 1986 and so prior to 1 December, 1988 when the Safety Rehabilitation and Compensation Act 1988 ("1988 Act") came into operation. That legislation now determines an employee's entitlement to compensation. Between 1 September, 1971 and 30 November, 1988 the Compensation (Commonwealth Government Employees) Act 1971 ("1971 Act") determined an employee's entitlement.
Although the law has changed, sub-section 24(1) of the 1988 Act makes it clear that it is the 1988 Act which applies in relation to an injury, loss or damage suffered by an employee whenever that injury, loss or damage occurred. It does so in the manner specified in Part X. Subject to that Part, a person is entitled to compensation under the 1988 Act in respect of an injury if compensation was, or would have been, payable to the person in respect of that injury under the compensation legislation that was then in operation (sub-section 124(1A)). It follows that, as Mrs Robotham attributes her condition to an event that occurred prior to 1 December, 1988 and when the 1971 Act was in operation, she will only be entitled to compensation if it was payable under the 1971 Act (sub-section 24(2)). This is consistent with the approach adopted by Lockhart J in Behan v Australian Telecommunications Corporation (1990) 22 ALD 545.
Sub-section 27(1) of the 1971 Act provided:
"If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act."
An "injury" was defined in sub-section 5(1) to mean:
"... any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease."
Putting to one side, for the moment, the question of whether Mrs Robotham's episodes of pain have been caused by her fall, there is an initial question of whether her fall arose out of, or in the course of, her employment. Both Mr Kelso and Miss Ford have referred us to a number of authorities: Charles R Davidson v M'Robb [1918] AC 304, Humphrey Earl Limited v Speechley (1951) 84 CLR 126, Commonwealth v Wright (1956) 96 CLR 536, Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529, Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473, Comcare v Mather and Mitchell (1995) 37 ALD 463, Gregory v Comcare (unreported, [1997] 4 FCA, 15 January, 1997) and Comcare v O'Dea (1997) 26 AAR 252.
The leading authority is Hatzimanolis in which the High Court considered the Workers Compensation Act 1987 (NSW). That legislation provides that a worker, who has received an injury, is to receive compensation in accordance with its remaining provisions. The word "injury" is defined in section 9 to mean "personal injury arising out of or in the course of employment". In their judgement, the majority of the High Court (Mason CJ, Deane, Dawson and McHugh JJ) traced the interpretation of the words "course of employment". They noted that:
"In Henderson v Commissioner of Railways (WA) ((1937) 58 CLR 281 at 294), Dixon J acknowledged that general expressions such as 'incidental to the performance of the work' had not 'proved very helpful' in determining whether an injury had occurred in the course of employment. His Honour suggested that, in cases which were not concerned with injuries sustained during actual work, the test of whether an injury had been sustained in the course of employment ultimately depended upon whether the workman was doing something which he was 'reasonably required, expected or authorized to do in order to carry out his actual duties' ((1937) 58 CLR 281, at 294). Dixon J. also applied that principle in Humphrey Earl Ltd. v Speechley ((1951) 84 CLR 126, at p 133) although in that case he omitted the adjective 'actual'." (page 479)
The majority traced the application of this test in various cases over the years and observed that:
"Given the flexible nature of the application of the test, it is not surprising that what is now perceived as required, authorized or expected to be done in order to enable an employee to carry out his or her duties covers many situations that were not contemplated when the test was first formulated in Henderson in 1937." (page 479)
They illustrated their point by reference to cases including Danvers. In that case, an employer had provided a van for his rail workers' accommodation. The van was moved from work site to work site. A railworker, who had finished work at 4.00pm, died when the van caught fire during the night. The majority in Hatzimanolis summarised the reasoning in Danvers as follows:
"Nevertheless, this Court, reversing the Court of Appeal of New South Wales, held that it was open to the Workers' Compensation Commission to find that the worker's death occurred in the course of his employment. Barwick C.J., with whose judgment Kitto and Windeyer JJ. agreed, adopted the statement of Dixon J. in Henderson ((1937) 58 CLR at p. 293) that doing what was reasonably required, expected or authorized to be done in order to carry out duties may include being at a place at which the workman's presence 'is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment' (Danvers (1969), 122 CLR at p. 536). His Honour said that it was not enough to exclude the use of the employer-provided accommodation from the course of employment to establish that there was other accommodation available in the vicinity of the place of work. If alternative accommodation was available, the worker would be outside the course of his employment in choosing to use the employer's accommodation only if he had a real and meaningful choice to use the alternative accommodation. His Honour also said (ibid. at p.573) that, in determining the course of employment, regard had to be had: 'to the general nature and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.' …" (page 481)
The majority continued:
"Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something 'in order to carry out his duties' at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers.
A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorized, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way. However, it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorized, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. That formulation would cover not only the case of the 'lunchtime' injury, as in Oliver, and the case of the railway worker, as in Danvers, but also many cases involving injuries occurring during intervals between daily periods of work which could not fairly be regarded as within the course of employment. Thus, an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor, although the case would come within such a formulation. The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.
The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the period of actual work was spent but in the characterization of the period or periods of work of those employees. For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.
Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment and 'not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen'. (Danvers, (1969) 122 CLR at p. 537)." (pages 482-484)
In Mather and Mitchell, Keifel J rejected a submission that the principles in Hatzimanolis required that an employee must be directed to a particular place or authority must be given for an identified activity before he or she could be said to have been in the course of his or her employment. Her Honour said that:
"The place at which or the activity undertaken at the time of the injury was not said in Hatzimanolis to have been previously expressed or identified by the employer. It happened that such an inference could be drawn there. An injury will, within the statement of principles, have occurred at a 'particular' place if it can be found to fall within the ambit of the employer's encouragement or inducement which may, in its terms, leave some matters to the decision of the employee. The statement of principles read, with the preceding analysis of case law, discloses an attempt to provide a satisfactory connection between injury and employment by a temporal connection (and as to which see Inverell Shire Council v Lewis (1992) 8 NSWCCR 562) which is strengthened by connection via the employer, the 'nexus' of which Lockhart J spoke in Comcare v McCallum (1994) 49 FCR 199 at 204." (page 468)
Mr Kelso relied upon Mather and Mitchell to support his submission that Mrs Robotham was, while on the base at Broadmeadows, at her place of employment and undertaking her duties as a member of the Defence Force regardless of whether she was undertaking her duties as a member of the Army's Catering Corps. He referred to sub-section 45(1) of the Defence Act 1903 which provides:
"Members of the Australian Regular Army or of the Regular Army Supplement are bound to render continuous full time military service."
Mather and Mitchell concerned members of the Australian Army who were engaged in Kangaroo 92. Kangaroo 92 involved them in three months of simulated combat exercises in northern Australia. Only local leave was granted during the three month period. There is nothing in Keifel J's judgement which suggests that the fact that a person is a member of the Australian Regular Army and so bound to render continuous full time service is relevant in considering whether he or she was in the course of his or her employment. Equally, there is nothing in her judgement to suggest that the fact that a person is at the place of her employment (i.e. Broadmeadows) necessarily resolves the question whether that person was injured "in the course of … employment". Whether or not a person is required to "render full time continuous service", there remains the question whether there is the necessary connection between the injury and the person's employment. That connection is a temporal connection as Keifel explained it (see paragraph 71 above).
This was also the approach adopted by Cooper J in Gregory. Mr Gregory had been a member of the Fire Section in the RAAF. A farewell barbecue, catered for in part by RAAF cooks, was organised for him at the Airmen's Club on a RAAF base. The farewell was held during working hours and Mr Gregory's roster was altered so that he was not rostered for duty and could attend. Cooper J said:
"The judgment of the majority in Hatzimanolis did not, in my view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth of Australia v Lyon 24 ALR at 303-304). What their Honours did in Hatzimanolis was provide to tribunals of fact reasoned guidance, by way of a 'unifying principle', in determining whether that temporal connection exists in circumstances where the injury in question is sustained during an interval between periods of actual work. Their Honours concluded that the distinction between a compensable and a non-compensable injury occurring in such an interval, where the employer had induced or encouraged the employee to spend the interval at a particular place or in a particular way and the injury was sustained at that place or while the employee was engaged in that activity, was to be drawn by a characterisation of the period or periods of work of the particular employee. That characterisation highlights the temporal nature of the connection between the place or activity at or during which the injury occurred and the employment.
The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because, putting aside injuries suffered while travelling to and from work and the like which are specifically provided for under the Act (see s 6), the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained.
The example given by the majority in Hatzimanolis of the employee who is encouraged by his or her employer to see a doctor after working hours illustrates the point. Whilst it might be said that an injury sustained by the employee while visiting the doctor is in some way causally connected to his or her employment, there can be no question of a temporal connection.
That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or the activity and the employment." (pages 6 and 7)
Is there the necessary temporal connection between Mrs Robotham's employment and her injury? In the circumstances of this particular case, the answer to this depends upon whether or not she was on a rostered break for a meal or other refreshment or whether she had finished work for the day. If she were on a rostered meal break, that break would be regarded simply as an interval or interlude within an overall period of work within the course of employment for, on the evidence in this case, we find that the Army encouraged her to take such breaks. It would follow that she was injured in the course of her employment.
Was she injured while on a break for a meal or refreshment? At the hearing, Mrs Robotham was adamant that she fell from the picnic table during a short break from work and that she was to resume duties in the bar of the Officers' Mess. We accept that she believes this to be so but, on the balance of probabilities, do not accept that it was so. Instead, we find, on the balance of probabilities, that she had completed her shift for the day when she was sitting in the Other Ranks Mess having a lemon squash. We do so having regard to a number of factors.
In support of Mrs Robotham's contention that she was on a break is her own memory. After being reminded by Mr Lawless at the first hearing that she was in uniform, she has accepted that she was in uniform. She recalls that she was on a break but is clear in her own mind that it was not a meal break. She readily agreed that her memory was not good. There is no other evidence that supports her memory of the break.
Some of the evidence does not take the matter further one way or the other. The statement of Mr Lawless did not address the issue at all and, to be fair, he was not asked to do so in that statement. He is reported in the transcript of the first hearing as having recalled that Mrs Robotham was in uniform at the time but that does not take the matter any further as it could mean that she was on a break (be it a meal break or some other break) or could equally mean that she had finished work but had not gone back to her living quarters on the base to change. Mr Baldrey has no memory of whether Mrs Robotham was, or was not, on duty.
Weighing against Mrs Robotham's being on a break are documents written in 1988 and so at a time much closer to the incident of 31 October, 1988. The first two are by Mrs Robotham herself. One is the report of the injury and the other is the first claim for compensation. Both state that her injury did not occur during "working hours". That view of the matter is supported by the statement by the officer in charge that she was off duty and had been stood down at 1900 hours. There was discussion at the hearing about what was meant by the expression "stood down". We accept that it may mean that a person is simply having a break from work be it for a meal or a smoko or that a person has finished for the day. In the context in which the officer in charge has used it, it is clear that he meant that she had finished for the day and was off duty. He had a number of other choices, including a choice that she was on duty and had been stood down, but he chose to mark that she was off duty.
While clear that she was on a break and was not off duty, Mrs Robotham was equally adamant that the break she was on was not a meal break. There is, however, no evidence of any type of break for stewards other than meal breaks. The time of those breaks varied according to whether a person was working in the Officers' Mess or the Sergeants' Mess and whether or not he or she was working in the bar or the dining room. The only night on which there was no break was a function night or the night of a happy hour. Mr Baldrey had no memory of what night it was. As Mrs Robotham's memory was that Mr Baldrey had to come from home, it would seem more probable than not that it was not a night of a function or happy hour. Had it been one of those nights, Mr Baldrey's evidence was that he would have been working.
Even looking at the matter from the point of view of the type of work she was doing at the time rather than whether she was on a break does not support Mrs Robotham's contention that she was on a break. We accept that she is clear in her own mind that she was undertaking bar duties in the Officers' Mess at the time of her fall and that Mr Baldrey was her supervisor at the time. If that were so, it would add weight to her being on a break for a meal because bar staff had a meal break for half an hour unless there were a function or a happy hour. Mr Baldrey's view of the matter, however, is that he would have been the supervisor in the Sergeant's Mess at the time. He began in the Officers' Mess when he went to Broadmeadows at the beginning of 1985 and remained there for twelve months. By the time of the fall in October, 1986, he would have been in the Sergeants' Mess. The time references given by Mrs Robotham point to her being in the Sergeants' Mess at the time of the fall. If that were so, it would accord with her memory of Mr Baldrey's being her supervisor at the time. In both the Officers' Mess and the Sergeants' Mess, she undertook duties in the dining room at times. On the nights on which she did those and did not do bar work, Mrs Robotham's evidence and Mr Baldrey's evidence points to her duties concluding at about 7.30 pm and not extending through to 22.00 hours as with bar work.
Having regard to the whole of the evidence as well as to the inconsistencies to which we have referred, we have concluded that we are satisfied that, on the balance of probabilities, Mrs Robotham had already concluded her duties for the day when she was having her lemon squash at the Other Ranks' Mess and subsequently fell. She was not in the course of her journey home but had interrupted it for her own purposes which did not arise out of her employment. Consequently, we are not satisfied that, on the balance of probabilities, Mrs Robotham's fall on 31 October, 1986 arose out of, or in the course of, her employment.
That is an end of the matter and there is no need to consider whether the fall on 31 October, 1986 led Mrs Robotham's suffering from episodes of pain as a result of her pre-existing spondylolisthesis. It follows that we affirm the decision of the respondent dated 14 June, 1996.
I certify that the eighty three preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Dr K P Kennedy (Member) and Mr I R Way (Member)
Signed: ..........................................
M Martinez AssociateDate/s of Hearing 24 and 25 November, 1999
Date of Decision 21 March, 2000
Counsel for Applicant Mr Kelso
Solicitor for Applicant Lees Marshall Warnick
Counsel for Respondent Miss E Ford
Solicitor for Respondent Australian Government Solicitor
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