Selvakumari Muthubalasuriyar and Comcare
[2013] AATA 147
•19 March 2013
[2013] AATA 147
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5393
Re
Selvakumari Muthubalasuriyar
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Mr P W Taylor SC, Senior Member
Date 19 March 2013 Place Sydney The decision under review is set aside and remitted to the Respondent to decide any other question involved in Mrs Muthubalasuriyar’s claim.
...............[sgd].........................................................
Mr P W Taylor SC, Senior Member
Catchwords
COMPENSATION – Commonwealth employees – interpretation of 2007 amendment to the Safety, Rehabilitation and Compensation Act 1988 – injury sustained as employee proceeding to lunch – whether injury arose out of, or in the course of the person’s employment – ordinary recess – whether the injury occurred at the employee’s place of work – whether the Tribunal is bound by an earlier decision – Green distinguished – decision set aside and remitted
Legislation
Acts Interpretation Act 1901 (Cth) s 15AB
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 6
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Cases
Re Barnard and Australian Postal Corporation [2008] AATA 507
Brice v Edward Lloyd Ltd [1909] 2 KB 804
Re Chapman and Comcare (2009) 109 ALD 699
Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318
Commonwealth v Oliver (1962) 107 CLR 353
Re Connor and Australian Postal Corporation [2009] AATA 973
Davidson v Mould (1944) 69 CLR 96
Re Ganchov and Comcare (1990) 19 ALD 541
Gane v Norton Hill Colliery Company [1909] 2 KB 539
Re Green and Comcare [2011] AATA 639
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Re Hughes and Comcare [2010] AATA 775
IW v City of Perth (1996-1997) 191 CLR 1
Re Littlejohn and Secretary, Department of Social Security (1989) 17 ALD 482
Low or Jackson v General Steam Fishing Co Ltd [1909] AC 523
Re McKenzie and Comcare [2011] AATA 924
Re Perera and Comcare [2009] AATA 499
PVYW v Comcare (No 2) (2012) 126 ALD 518
Telstra Corporation Ltd v Bowden (2012) 206 FCR 207
Thiele v Commonwealth of Australia (1990) 22 FCR 342
Weaver v Tredegar Iron and Coal Co Ltd [1940] AC 955Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328
Secondary Materials
Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth), Explanatory Memorandum
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
19 March 2013
The Applicant, Mrs Muthubalasuriyar, has been employed by Centrelink for many years. She worked at Blacktown, as a customer service advisor, on the upper floor of a leased two storey office building.
On 20 September 2011 Mrs Muthubalasuriyar left her office work station to take a lunch break. She went down the fire stairs, opened the street level exit door at the rear of the building, and walked along a concrete pathway. The pathway was part of a concreted area between the the building alignment and the laid back kerb of the street. A strip of markers ran along the length of the area. These markers differentiated the pathway itself from seven adjacent marked and bollarded car parking spaces.
A little way along the pathway Mrs Muthubalasuriyar fell. The fall caused fractures to her left wrist and right ankle. Because of those injuries she was, for a time, unable to work. After that, she worked restricted hours for a period of several months.
On 23 September 2011 Mrs Muthubalasuriyar made a claim for compensation for her fall injuries. Comcare refused her claim. After her request for reconsideration, Comcare confirmed the refusal, on the basis that she had not suffered a work related injury to which the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) applied. That reconsidered refusal is the subject of Mrs Muthubalasuriyar’s review application to the Tribunal.
The parties have agreed that the principal issue in the review proceedings is whether Mrs Muthubalasuriyar’s wrist and ankle fractures, having regard to the time and place of her fall, were injuries “arising out of, or in the course of, [her] employment” for the purposes of the SRC Act. That agreement about the nature of the principal issue led the parties to express a preference for the Tribunal to address only that issue, and to remit consideration of any other questions involved in Mrs Muthubalasuriyar’s compensation claim to Comcare, if the principal issue was resolved in her favour. Consistent with the parties’ preference, I gave a direction, under s 25(4A) of the Administrative Appeals Tribunal Act 1975, limiting the issues and evidence in these proceedings to the principal issue agreed by the parties.
That principal issue – whether Mrs Muthubalasuriyar’s claimed injuries arose “out of, or in the course of” her employment – has to be resolved against the background of three main considerations. Those considerations are: (i) the circumstances of Mrs Muthubalasuriyar’s employment and fall, (ii) the relevant provisions in the SRC Act, and (iii) prior judicial and Tribunal decisions applying similar legislative provisions to analogous (or apparently analogous) circumstances.
The circumstances of Mrs Muthubalasuriyar’s fall and employment
The relationship between the various elements of the building, the path where she fell on 20 September 2011, and the adjacent car parking spaces, is apparent from the following illustration, and its accompanying annotations.
Signs on building wall – “Authorised Parking Only”
Basement car park entry
Line of kerb and property boundary Fire exit door location
Footpath area Fall location (approx) Parking spaces and lockable bollards
The basic events in which Mrs Muthubalasuriyar suffered her fall are as I have described them in paragraphs 2 and 3 above. To that description it is useful to add the following:
(a)It was Mrs Muthubalasuriyar’s usual practice to take her lunch break between 13:30 and 14:00.
(b)The fire stairs were close to Mrs Muthubalasuriyar’s work station. Her habit was to leave the office during her lunch break, and to do so by using the rear fire stairs and exit.
(c)Mrs Muthubalasuriyar usually used the fire stairs twice a day (at lunch time and when she left work).
(d)Other Centrelink employees often used the fire stairs to leave the building. She had never been told not to use them.
(e)Mrs Muthubalasuriyar’s supervisors were well aware of the regular use of the stairs and rear fire exit and had never discouraged it.
The evidence, including that given by Mrs Muthubalasuriyar and two more senior Centrelink officers, established the following propositions in relation to the leased building and the use of the pathway and the car parking spaces:
(a)Centrelink’s lease included only the interior of the office building (including a car park within the building basement), and not the whole of the land within the property boundaries.
(b)The street level car parking spaces on the concrete area at the rear of the building were not formally part of the leased premises. But, under a separate informal arrangement with the landlord, they had been equipped with lockable bollards and were consequently reserved for Centrelink’s exclusive use.
(c)Centrelink allocated the car parking spaces, both in the basement and at the street level, on a rostered basis. Employees who used the street level car parking spaces were given keys to access the lockable bollards.
(d)The fire door was the only rear street level exit from the office floors of the building. It was regularly used by Centrelink staff – for various purposes including (i) having smoke breaks, (ii) leaving work to collect their cars (either those parked in the bollarded spaces or in a public car park on the other side of the road) and (iii) taking the most convenient walking route to the nearby train station or shopping centre.
(e)The rear fire door did not provide access to the building unless a person who used the door to leave the building physically prevented it from fully closing. Some of the Centrelink staff who used the fire door to take smoke breaks often obstructed the door from closing – so that they could conveniently re-enter.
(f)Members of the public had no right to traverse the footpath area and the landlord could (as a matter of legal right) have physically prevented the public from using the unleased footpath area. Centrelink had no legal right to control access to the footpath area itself, but it had practical control of the street level car parking spaces. And Centrelink had installed a camera to monitor the area at the rear of the building, including the footpath.
(g)Members of the public could, as a matter of physical possibility, have used the footpath. But it was not a practical path for ordinary members of the public to take. It did not lead to any publicly accessible entrance to the building. There was no evidence, and I think it inherently unlikely, that it was used by members of the public to leave the building. The footpath did not lead to any other building. It did not connect with any other footpath area. The only situations in which members of the public might use the footpath were: (i) as a temporary, and not altogether convenient, alternative to walking along the road, and (ii) if they were passengers entering, or alighting from, a vehicle that had impermissibly parked in a street level car parking space whose bollard had not been raised by Centrelink employees. In reality, members of the public only occasionally parked in the bollarded spaces and otherwise rarely used the footpath area.
The statutory criteria
Presence at, and absence from, a place of work
Mrs Muthubalasuriyar’s wrist and ankle fractures involved an injury for the purposes of the SRC Act if they arose “out of, or in the course of” her employment: SRC Act s 5A(1). According to SRC Act s 6(1), without limiting the circumstances in which they may be so characterised, an employee’s injuries must be regarded as having “arisen out of, or in the course of” the person’s employment if they were sustained while the person was “at [her] place of work, including during an ordinary recess, for the purposes of that employment”: SRC Act s 6(1)(b).
There is a potential complication in applying the extended statutory provisions in SRC Act s 6(1)(b) to injuries an employee suffered during an ordinary work recess. The provisions had been amended in April 2007. They were amended again in December 2011 – back to substantially the same (that is, the pre April 2007) wording. According to the pre April 2007, and post December 2011, statutory wording Mrs Muthubalasuriyar’s fractures would also have had to be regarded as arising “out of, or in the course of” her employment if they occurred either whilst she was “at” her place of work, or whilst she was “temporarily absent from [her] place [of work] during an ordinary recess” in her employment: SRC Act s 6(1)(b)(i) – prior to April 2007 and SRC Act s 6(1)(b) – after December 2011.
There are two essential differences between the versions of the extended SRC Act provisions. First, the pre April 2007 wording of SRC Act s 6(1)(b)(i), and the December 2011 wording of SRC Act s 6(1)(b), made no specific reference to any ordinary recess that an employee spent “at” their place of work. Second, the pre April 2007 wording mandated characterisation of an employee’s injury as having arisen “out of, or in the course of” their employment if the injury occurred either “at the employee’s place of work” or during any temporary absence during an ordinary recess from their place of work. The provisions in force in September 2011, on the other hand, confined the mandated characterisation to injuries that occurred “at the employee’s place of work”, and treated “an ordinary recess” as a concept that was included in the idea of the employee’s presence at their place of work.
Ordinary recess
The purpose of the inclusive reference to “an ordinary recess” in the 2007-2011 version of SRC Act s 6(1)(b), without specific reference to absence from the person’s place of work, is contextually obscure. At one level of meaning the inclusive reference to “ordinary recess” is a mere, and unnecessary, exegesis, to the principal criteria – that the person must be both “at” their place of work and present “for the purposes of their employment”. No such exegesis had appeared in the pre April 2007 SRC Act s 6(1)(b)(i) wording, nor was it retained in the December 2011 SRC Act s 6(1)(b) wording. In those circumstances it is readily apparent that if the legislative intention of the April 2007 amendments had been merely to include all injuries that occurred “at the employee’s place of work”, and to exclude all injuries that occurred whenever the person was absent from their place of work, that intention would have been more clearly effectuated by entirely removing any reference to “ordinary recess” from the wording of SRC Act s 6(1)(b). On the contrary, not only was that expression retained but another amendment, in SRC Act s 6(1)(c), extended liability to injuries that an employee suffered whilst absent from their workplace, if the injury occurred while they were undertaking an activity “associated with” their employment.
At another level of meaning the inclusion of “ordinary recess” in SRC Act s 6(1)(b) is capable of conveying the idea of both temporal and spatial interruption to the employee’s presence “at” the workplace. The word “recess” is variously referred to in the Macquarie Dictionary (Revised third edition) as an area (one that is “set back” or “secluded”), an interruption of activity, perhaps including some element of a change of location (such as the period between Parliamentary sessions or the mid-morning break between school classes), and the period of time occupied by such an interruption. The New Shorter Oxford Dictionary gives similar meanings for the term recess.
Because of the various connotations of the word “recess” it is possible to interpret the 2007-2011 version of SRC Act s 6(1)(b) as if it was exclusively concerned with a temporal interruption of the injured person’s ordinary work activity. On this interpretation of the word “recess” the provision would only have an inclusive effect, in characterising an injury as one that arose “out of, or in the course of” a person’s employment, if the person was “at the employee’s place of work” when they were injured.
But the inclusive reference to an “ordinary recess” would have had very questionable utility, if it was confined to this principally temporal notion of a “recess”. It would only have served to clarify that a person who was injured whilst they were at “at [their] place of work”, even though they were not actually working at the time they were injured, nevertheless to be treated as having suffered an injury “arising out of, or in the course of,” their employment.
Legislative clarification of that kind could not reasonably have been regarded as necessary. It had not been included in the pre April 2007 versions of SRC Act s 6(1). Numerous authoritative decisions suggested that no such clarification was at all necessary. Injuries that a person suffers during meal or rest breaks taken on the employer’s premises, with the employer’s permission or tolerance, have long been regarded, for the purpose of workers’ compensation legislation, as having arisen in the course of the person’s employment. More than 60 years earlier, in Weaver v Tredegar Iron and Coal Co Ltd [1940] AC 955 at 966 Lord Atkin said it was “well settled that a man injured while taking refreshment on the premises at a permitted hour or otherwise relieving necessities of nature is in the course of his employment”. In Davidson v Mould (1944) 69 CLR 96 the High Court held that a factory worker who damaged his eye with the top of a soft drink bottle that he opened on a workbench while taking his lunch break had been injured in the course of his employment. In Commonwealth v Oliver (1962) 107 CLR 353 the High Court determined that a factory worker had been injured “in the course of his employment” when he fell on a concrete surface during a lunchtime cricket match at the factory premises where he was employed. Dixon CJ explained (at 107 CLR 355-356 and 359) that in the disjunctive expression “arising out of, or in the course of, the employee’s employment” there was no causal element in characterising a person’s injury as having arisen “in the course of” their employment”. The concept included not only the actual performance of work, but also things that were “but adjuncts or incidents growing out of the employment”. The Chief Justice then cited with approval the following passage from the speech of Lord Loreburn in Low or Jackson v General Steam Fishing Co Ltd [1909] AC 523 at 532:
Everything, of course, must depend upon the nature of what he has to do, but allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act. A man may be within the course of his employment not merely while he is actually doing the work set before him, but also while he is where he would not be but for his employment, and is doing what a man so employed might do without impropriety.
The decision in Commonwealth v Oliver (1962) 107 CLR 353, involving a wholly discretionary lunchtime diversion that was nominally discouraged, but in actual fact tolerated, by the employer, shows something of the potential width of the meaning conveyed by the notion of activity that is an adjunct or incident growing out of a person’s employment. It strongly supports the view that no clarification was required to ensure the inclusion of injuries that occurred during “recess” periods at the person’s place of work. The statutory scheme, although confining relevant injury to occurrences “arising out of, or in the course of” employment, mandated that characterisation of any injury when it occurred “at” the person’s place of work.
Furthermore, although Oliver’s case involved an accident that occurred within the premises controlled by the employer, that circumstance is not a necessary pre-condition to the permissible characterisation of an injury as one that has arisen “in the course of” a person’s employment. In Low or Jackson v General Steam Fishing Co Ltd [1909] AC 523 the person had been employed as a watchman responsible for four ships berthed at a public quay. During a 25 hour shift he left the ships and went to a nearby hotel for refreshments. In the course of attempting to return to the vessels he fell from a ladder on the quay and drowned. His death was characterised as having arisen “in the course of” his employment. Lord Ashbourne said the man had a right to go between the vessels and the quay, and that he was relevantly at his employment when he had reached the quay after returning from the hotel (at page 533). Lord Shaw was of the same opinion (at page 547). Lord James thought that the man’s conduct in moving (or attempting to move) from the quay to the vessels must necessarily be regarded as conduct “in the course of” his employment (at page 534). Lord Atkinson said the evidence did not permit a positive conclusion that the workman was entitled to leave the quay and the vessels in order to purchase refreshments. His Lordship concluded nevertheless, that the watchman was entitled, as part of his duties, to be on the quay for the purpose of carrying out his duties. His Lordship continued:
… if during the night he had, after seeing the boats were all secure, gone ashore to walk up and down the quay, not in order to watch his boats, but to keep himself warm, and had, on attempting to return to the trawler from which he had gone on shore, met with an accident such as he in fact met with, it could not, I think, be contended that this accident had not arisen “out of and in the course of his employment,” on the ground that he was employed to watch and not to warm himself.
The decision in Low or Jackson v General Steam Fishing Co Ltd [1909] AC 523 shows that a person may be both “at” work and “in the course of” their employment even though the place where they have been injured is not controlled by the employer. What the decision leaves obscure is whether the “course of work” concept applies only to the person’s activities in the place where they are required to work (even though it is not “controlled” by their employer, for example, the quay in that case) or whether it includes the activities of entering or leaving the employer’s place of work.
But other cases do establish that the “course of employment” concept is not restricted, at least not necessarily restricted, to injuries that occur within the boundaries of the actual place of work. In Brice v Edward Lloyd Ltd [1909] 2 KB 804 at 809 Farwell LJ said:
It is now well settled that the word “employment” in the Act is not to be confined to actual work. In my opinion it extends to all things which the workman is entitled by the contract of employment expressly or impliedly to do. Thus he is entitled to pass to and from the premises and to take his meals on the premises.
In Davidson v Mould (1944) 69 CLR 96 Williams J endorsed the qualified remarks of Jordan CJ that “prima facie at any rate” a person who left their employer’s premises for a meal break would necessarily cease to be “in the course of” their employment during the period of their absence. But this qualified comment does not specifically address the characterisation of injuries that occur when the person is in the process of entering or leaving the employer’s work place. In Gane v Norton Hill Colliery Company [1909] 2 KB 539 a collier had his legs crushed when he climbed underneath wagons on a train line between his village and the pit where he worked. The train line was actually owned by his employers, but this fact seems not to have been regarded as decisive in characterising his injuries as having arisen in the course of his employment. Lord Cozens-Hardy MR, whilst explicitly disavowing any suggestion that the whole of a worker’s journey between his home and place of work involved his course of employment, said (at 544) that the concept “must include a reasonable interval of time and of space during which the employment lasts”. Similarly, Farwell LJ referred to a worker’s “coming on the employer’s premises, passing and repassing for all legitimate purposes connected with his work on the premises”, and characterised that conduct as within the worker’s “course of employment” (at 545).
In Weaver v Tredegar Iron and Coal Co Ltd [1940] AC 955 this reasoning was applied to a miner who fell from a railway platform. The platform was owned by a railway company and had been built on its land. But it abutted the employer’s land, was not accessible to the general public and was for the exclusive use of the employer’s mine workers. Lord Atkin said the concept of “course of employment” could not be limited either to activities at places exclusively controlled by an employer, or to activities that a person had a specific duty to perform. After referring to a number of decisions involving injuries suffered by persons boarding or disembarking from ships His Lordship said (at 970) that he considered the ultimately relevant enquiry was whether the injury had occurred in “the area or immediate area” of the person’s employment, rather than on the employer’s premises. This followed from recognising (at 969) that:
It is well established that the workman while leaving his employer’s premises by one of alternative routes is at any rate while on the premises in the course of employment: and it would surely be remarkable that if at the end of one of those permitted routes the employers had provided by license from third parties a route over such third parties’ land for the very object of making the permitted route on the employer’s premises an effective means of entrance or egress, the course of employment ceased on the employer’s boundary, and the doctrine of the cases cited ceased to apply.
The other members of the majority in the House of Lords expressed similar views. Lord Wright (at 974-975) said that it was an employer’s duty “to provide means of access to and egress from the work” and that several previous decisions had recognised “a sort of notional extension of the employer’s premises” for the purpose of determining whether an injury had occurred “in the course of” employment. Lord Romer (at 981) said that a person may be in the course of their employment if they are using a means of access to their place of work that is not open to the public, and irrespective of whether the access is over property belonging to the person’s employer or a third party. Lord Porter (at 991) said:
… it is in the course of his employment … both to go to and proceed from the work upon which he is engaged, and so long as he is in a place in which persons other than those so engaged would have no right to be and indeed in which he himself would have no right to be but for the work on which he is employed, he would, I think, normally still be in the course of his employment.
The reasoning in these cases is far from contemporary, but it is persuasive – because contemporary understanding of the breadth of circumstances that potentially fall within the concept of “course of employment” has broadened rather than narrowed: Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 479.
Moreover, the concept of “course of employment” has been applied to assist in the characterisation of conduct that occurs within the person’s working day. Thus in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 483 the High Court remarked:
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.
What this analysis of the authorities suggests is the improbability that the idea of an “ordinary recess”, as an inclusive element of the April 2007 wording of the SRC Act s 6(1)(b), was a mere declaration that activities a person undertook, at their place of work, during an ordinary interruption of their work activities, were to be characterised as within the scope of the person’s employment. It is rather more likely that the introduction of the concept of “ordinary recess”, when used as an inclusive adjunct to the expression “at” the person’s place of work, was intended to complement a long history in which the “course of employment” concept had been accepted as at least potentially including activities that occurred outside the physical boundaries of the employer’s work site.
There is a general principle that legislative provisions such as those contained in the SRC Act should be beneficially construed and given a construction that advances its purpose: Thiele v Commonwealth of Australia (1990) 22 FCR 342 at 346. A high point in this approach is the proposition that where two interpretations of the statutory wording are properly available, “that which is favourable to the worker should be preferred”: Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J. Although this permissible preference is tempered by the prohibition against acceptance of statutory interpretations that are unreasonable or unnatural: IW v City of Perth (1996-1997) 191 CLR 1 at 12.
This general principle applies, though with some obvious limitations, to the interpretation of the SRC Act s 6(1)(b) after the amendments of April 2007. Those amendments were part of the changes brought about by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007. Those changes intentionally limited the circumstances in which a worker’s conduct was required to be treated as “in the course of” their employment. One specific change was the removal of the provisions that required work related travel to and from an employee’s ordinary residence to be treated as “in the course of” their employment. Another change, upon which I remarked (in paragraphs 11 and 12 above) was the removal of ordinary recess absence from a place of work from SRC Act s 6(1)(b)(i) as a period that had to be treated as “in the course of” a person’s employment. Yet another change was the inclusion of injuries that occurred outside the workplace, but whilst the person was undertaking an activity either “associated with” their employment, or requested by their employer: SRC Act s 6(1)(c).
In the light of the amendments contained in the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, it is certainly necessary not to accord the 2007-2011 version of SRC Act s 6(1)(b) an unnatural or unreasonable construction. But it is also necessary to bear in mind that the paragraph operates as a mandated exegesis to the definition of “injury” in SRC s 5A(1). The opening words of SRC Act s 6(1) were not altered by the 2007 amendments. They make clear that the various mandated inclusions set out in SRC Act s 6(1)(a) to (g) apply “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”.
In these circumstances the 2007-2011 version of SRC Act s 6(1)(b) presents a difficult problem of interpretation – at least in determining whether an injury that occurred during “an ordinary recess” must be treated as having arisen “in the course of” the person’s employment. At first blush, without reflective consideration of both the amplitude of the inclusive expression “at the employee’s place of work”, and the substantial history of judicial interpretation of the expression “in the course of employment”, the post April 2007 wording of SRC Act s 6(1)(b) presents a beguiling simplicity. It is a simplicity that appears to be enhanced by parts of the contents of the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006. Page xiii of the Explanatory Memorandum, in the Regulation Impact Statement section of the memorandum, identified the employer’s “control” as a relevant consideration in imposing compensation liability for “recess breaks and work-related events”. It recorded the objective of the amendment as being “to limit employers’ exposure to liability for employees’ injuries sustained during journey and recess breaks ... in circumstances where there is a lack of employer control”. Page xviii of the Explanatory Memorandum described the amendment as limiting “the employer’s exposure to liability to circumstances where the employer has occupational health and safety obligations and an element of control”. In the schedule of the Explanatory Memorandum describing the amendments the Bill will effect, the Explanatory Memorandum noted a Productivity Commission recommendation that coverage for recess breaks should be restricted, on the basis of lack of employer control, to those at workplaces, and said that the amendments reflected the recommendation. The Explanatory Memorandum then continued to describe the amendments as providing that injuries sustained “during an ordinary recess in employment will generally not be injuries arising out of, or in the course of, employment.”
As a matter of principle the contents of the Explanatory Memorandum are available as an aid to the interpretation of SRC Act s 6(1)(b): (i) to confirm the ordinary meaning conveyed by the text, understood within the overall context and purpose of the legislation, (ii) to determine the meaning of the text, if it is regarded as ambiguous, or (iii) where the ordinary meaning of the text leads to a result that is either “manifestly absurd or is unreasonable”: Acts Interpretation Act 1901 s 15AB(1). However, I doubt that the Explanatory Memorandum really provides meaningful assistance in interpreting the actual statutory wording. Part of the reason for that doubt is the fact that the various comments in the Explanatory Memorandum, where they refer to an intention to limit employers’ exposure, do not address the actual relationship between the general and inclusive elements of the concept of “injury” (in SRC Act s 5A(1)(b) and s 6(1)), and the limited role of SRC Act s 6(1)(b) in mandating the circumstances in which an injury is required to be treated as having arisen “in the course of” a person’s employment. Another reason is that the objective of the amendments is described as limited to situations “where there is a lack of employer control”. Relevant control is not always confined to the employer’s property boundaries and, arguably consistent with that view the Explanatory Memorandum contains the qualification that “generally” injuries that occur whilst a worker is absent from the workplace during an ordinary recess will not be injuries “arising out of, or in the course of employment.”
The background of the evident general purpose of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, with its specific amendments to SRC Act s 6(1)(b) does show an intention to limit the circumstances when an injury suffered during a workplace absence during an “ordinary recess” must be treated as having arisen during the course of the person’s employment. But that evident purpose does not detract from the generality of the definition of injury in SRC Act s 5A(1). Nor does it detract from the continued relevance of the authorities that have interpreted that general definition, and its relevantly analogous provisions. Those authorities establish, as I have endeavoured to point out, that there are circumstances when an employee’s conduct outside the physical boundaries of an employer’s premises can properly be regarded as “in the course of” the person’s employment. Those circumstances are limited. For that reason the Explanatory Memorandum accompanying the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 correctly observed (at page 6) that “injuries incurred while an employee was temporarily absent from the workplace during an ordinary recess in employment will generally not be injuries arising out of, or in the course of, employment”. But the accuracy of that comment derives from the content of the established authorities dealing with the wording of the general definition of injury in the SRC Act. It does not, in my opinion, meaningfully derive from any general statutory purpose thought to be suggested by the amendment to the, otherwise inclusive, provisions contained in SRC Act s 6(1)(b) itself.
On this basis, the fact that Mrs Muthubalasuriyar’s injuries occurred during an ordinary meal break would not suffice to establish that her injuries occurred at her “place of work”. But, on the other hand, neither the fact that Mrs Muthubalasuriyar was not performing work, nor the fact that she was not within the precise physical confines of the workplace, when she was injured, would necessarily preclude her injuries from being characterised as “arising out of, or in the course of,” her employment.
“place of work” AND previous decisions on similar claims
Several previous Tribunal decisions have dealt with the application of the April 2007 changes to s 6(1) of the SRC Act to both “recess” accidents and to accidents that occurred when the person was in the process of either arriving at or leaving their employer’s premises. Two decisions involving lunch time recess accidents reached different results. In Re Connor and Australian Postal Corporation [2009] AATA 973 the injury occurred in a car park area that was not leased by the employer, but to which it controlled access. The Tribunal held that the injury occurred “at” the person’s place of work. In Re Green and Comcare [2011] AATA 639 the employer leased several floors of a multi-level office building. The employee left the building interior and fell whilst walking along an exterior walkway. That walkway was within the boundaries of the landlord’s property and underneath the building’s first floor overhang. But it was not part of the employer’s leased area, and it was freely accessible to, and was in fact used by, the general public. The Tribunal held that the injury did not occur “at” the person’s place of work and did not arise “in the course of” her employment.
In the present case the Respondent relied on the decision in Re Green and Comcare [2011] AATA 639, and the reasons why the Tribunal held that the employee had not been injured in the course of her employment. The principal reasons for that conclusion were:
(i)that the intention underlying the April 2007 amendment of SRC s 6(1) was to exclude liability for injuries an employee suffered whilst temporarily absent from the workplace during an ordinary recess, and to confine that potential liability to “recess” injuries that arose “at the employee’s place of work or are otherwise associated with the employee’s employment”: see [2011] AATA 639 at [37]-[39] and [69]-[70];
(ii)that the worker had not been required to use the exterior walkway;
(iii)that the High Court decision in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 established that an injury suffered away from the workplace and between periods of actual work could only be regarded as having occurred “in the course of employment” if the employer had encouraged or induced (as distinct from merely having permitted) the employee to go to the place where the accident occurred: see [2011] AATA 639 at [57]-[68];
(iv)that a person’s place of work, whilst it typically included the physical boundaries of the employer’s premises, did not extend to include areas that were publicly accessible, over which the employer had no real control and at which the employee was not required to carry out any activities: see [2011] AATA 639 at [77]-[81].
The Tribunal’s conclusion in Green’s case was that unless a recess injury occurred in a place where the employee had been encouraged or induced to go, it could not be regarded as having arisen “in the course of” a person’s employment. The Tribunal considered that this conclusion was supported by other Tribunal decisions. These were (i) the “ordinary recess” decision in Re Chapman and Comcare (2009) 109 ALD 699, and (ii) the “journey” case decisions in Re Perera and Comcare [2009] AATA 499, and Re Barnard and Australian Postal Corporation [2008] AATA 507.
In Chapman the worker had taken a short rest break. She was injured whilst descending a flight of shopping centre stairs leading to the second floor of the centre. Her employer’s premises were located on the ninth level of the building. The employer’s premises included rest areas that were available for its workers’ use. The Tribunal held that the worker was only required to work within her employer’s offices and was not “at” her place of employment when she was injured.
In Perera the worker was on his way to his employer’s offices, located on the fifth level of an office building. He was injured whilst walking along the publicly accessible shopfronts underneath the first floor overhang of the multi-storey office building. The Tribunal concluded that he was not “at” his place of work when the injury occurred.
In Barnard the employee had finished work for the day. She fell whilst descending steps that led down to a public footpath. The steps were about 15 metres from the building perimeter, but within the common areas identified in the employer’s lease of the building. Again the Tribunal held that after she had left the building itself the employee was no longer “at” her place of work. However, the Tribunal also commented that if the employer had been injured in a common area within the building, that would not preclude a conclusion that the injury had occurred “at” her place of work. The Tribunal gave the example of an injury that occurred in a toilet area, or in a stairwell connecting two floors leased by the employer.
It was submitted on Mrs Muthubalasuriyar’s behalf that these decisions, or at least some of the reasoning expressed in them, overstated the effect of the 2007 amendments to s 6(1)(b) SRC Act. The essence of this submission was that the 2007 amendments had not altered the opening words of s 6(1) itself. Those words – “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” – precluded (according to the Applicant’s submission) the inference of statutory intention said to have been drawn in Green’s case. The essence of the contentions put on Mrs Muthubalasuriyar’s behalf was that the primary question was whether or not her injuries had occurred at her “place of work”, and that question was to be resolved as a matter of fact, and not by resort to an interpretative criterion not expressed, nor even necessarily implicit, in the statutory criterion.
The Respondent, whilst accepting the relevance of the opening words of s 6(1) of the SRC Act, urged acceptance of the broader reasoning process adopted in Green’s case – that temporary absences from the workplace should not be regarded as arising “out of, or in the course of” a person’s employment unless the employer had actively and positively encouraged the person’s presence at the place where the injuries were suffered.
Approach to the earlier decisions
Passages in the Tribunal’s reasons in Re Green and Comcare [2011] AATA 639 (for example, at [40], [69] and [74]) are capable of conveying the impression that the 2007-2011 form of SRC Act s 6(1)(b) should be interpreted as if it conveyed a specific intention to exclude from the concept of injuries “arising out of, or in the course of” a person’s employment injuries that occurred during an “ordinary recess” unless they occurred “at” the employer’s place of work. Other passages in the reasons in Green (for example, at [60]-[68]) are capable of conveying the impression that where an injury occurs outside the employer’s place of work, and during a work interval or recess, the injury can only be treated as “arising out of, or in the course of” the person’s employment if the employer had expressly or impliedly induced or encouraged the person to be at the place where the injury occurred.
On the other hand, the ultimately operative reasons for the decision in Green were that the fall area was within the common areas of the leased premises, exterior to the building, publicly accessible, not within the employer’s control, and not a place where Ms Green had been required to do any actual work. None of these primary factual findings was open to question. Bearing in mind the essentially impressionistic assessment as to whether or not these factual findings characterise an injury as one “arising out of, or in the course of” a person’s employment, there is no compelling reason to doubt the ultimate finding in Green’s case. Conversely, since the decision can be understood on that basis, there is no compelling reason to regard the Tribunal’s other apparent observations in Green (that is, those referred to in paragraph 43 above) as commanding deference. This is so notwithstanding the general desirability of conformity in the Tribunal’s decisions, and the concomitant desirability of members of the Tribunal deferring to earlier decisions, unless properly and sufficiently convinced either that the decision is contrary to a binding precedent or is wrong and should not be followed: see Re Littlejohn and Secretary, Department of Social Security (1989) 17 ALD 482 at [9]; Re Ganchov and Comcare (1990) 19 ALD 541 at [39]-[43].
Notwithstanding my view that the propositions that may appear to have been expressed in Green (see paragraph 43 above) were not essential to the ultimate decision in that matter, they were embraced by the Respondent in the present case. Those submissions should not, in my view be accepted. I will explain why.
The inference of legislative purpose: The provisions of SRC Act s 6(1) are an inclusive mandatory exegesis to the definition of “injury” in SRC Act s 5A. However restrictive that exegesis may be, and whatever inferences may be drawn from legislative amendments to that exegesis, no restrictive conclusion can be drawn about the legislative intention in relation to the primary definition of injury for the purposes of the SRC Act. A restrictive limitation of the circumstances in which a work recess must be treated as “arising out of, or in the course of, employment”, where it is specifically expressed not to limit the circumstances in which that characterisation may be proper, cannot be regarded as conveying any relevant limiting legislative intention in relation to the primary definition.
The inference that the decision in Hatzimanolis requires employer inducement or encouragement before a work recess activity can be regarded as “in the course of” a person’s employment: The circumstances in Hatzimanolis did not involve an ordinary recess. It was concerned with a sightseeing trip to a place remote from the work place, and one undertaken quite separately from any relevant work period. Whilst there is an understandable and necessary respect for the apparent generality of some of the passages in the majority judgment in Hatzimanolis, it is also important to understand them against the actual circumstances in issue in that case. Like Murphy J in Telstra Corporation Ltd v Bowden (2012) 206 FCR 207 at [86]-[89], and Nicholas J in PVYW v Comcare (No 2) (2012) 126 ALD 518 at [41] I do not consider that it is the correct approach to regard the reasoning and decision in Hatzimanolis as in any sense authority for the proposition that employer inducement or encouragement is a necessary prerequisite (to characterisation of an injury as one “arising ... in the course of” employment) whenever a person suffers injury outside their actual place of work.
Mrs Muthubalasuriyar’s contentions
Two alternative submissions were made on behalf of Mrs Muthubalasuriyar. The first was that when she fell she was “at the employee’s place of work” and her injuries must consequently be treated as having “arisen out of, or in the course of” her employment: SRC Act s 6(1)(b). The second submission was that even if the pathway where she fell was not “at [her] place of work”, she had nevertheless suffered injuries “arising out of, or in the course of” her employment.
Mrs Muthubalasuriyar’s “place of work” submission involved the proposition that her fall was “at [her] place of work” if it occurred at a place Centrelink relevantly controlled. That control did not have to be exclusive, nor did it have to derive from a legally recognised, right or power. The reasoning of Northrop J in Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318 was relied on to support the proposition that control, as distinct from the boundaries of the precise area where a person ordinarily carried out their employment duties, was a determinative consideration in determining whether a person had suffered their injury the person’s “place of work”.
The decision in Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318 involved a member of the Army who had been injured in a car accident whilst travelling between his parents’ home and the army barracks. The soldier normally lived with his parents, when he was not required to live at the barracks. The Tribunal found that the soldier had been injured whilst travelling between his place of residence and his place of work. Northrop J upheld that decision. In the course of so doing, His Honour reviewed the concept of a “place of work” for the purposes of the SRC Act. He concluded that the soldier’s “place of work” was the army post, viewed as general description, and that no distinction should be drawn between the “residential” and “training” areas within the army post. His Honour said (at 150 ALR 326):
In normal understanding the place of work is the place at which an employee attends for work as an employee. It is not to be limited to the office or particular workshop where the employee performs duties.
The negative proposition, that the “place of work” was not limited to a specific office or workshop, followed on from earlier findings that (i) the expression “connotes a defined area, normally the whole area of the work place … or, to put the matter in another way, the area over which the owner or legal occupier of the area has control”: (150 ALR 325) and that (ii) “in general understanding … what is connoted are the boundaries of the … place of work”: (150 ALR 325-326).
It follows from this decision, and the authorities to which it refers, that the expression “place of work” conveys, in its ordinary meaning not only the direct and immediate physical location that the person occupies whilst performing work activities, but also the general site occupied by the employer. But that ordinary meaning has its most appropriate application where employer’s property limits, powers of control and the practical manifestation of those powers effectively coincide – as they did in the case of the Army post and barracks in O’Dea. It has a less compelling application both where the employer asserts practical control over premises it does not own, or where the only use it makes of part of its premises is to permit unrestricted public access. In situations of that kind determining whether the particular location is within the employer’s place of work requires taking into account the combined realities of: (i) actual control, (ii) public, private or exclusive, access, (iii) actual use, and (iv) physical location, including proximity to the employer’s actual workplace environment: see Re Hughes and Comcare [2010] AATA 775 at [32]; Re McKenzie and Comcare [2011] AATA 924 at [52]; Re Green and Comcare [2011] AATA 639 at [80].
In the present case the footpath area was not within the limits of Centrelink’s lease. Nor was it an area where Mrs Muthubalasuriyar was required to work. On the other hand, it was an area that lay between two areas that Centrelink did control – the building itself, and the bollarded carpark spaces. It was an area that had no real practical use, other than by Centrelink staff. Centrelink condoned its use by its staff, both for recreational work breaks and as a means of entry and egress to the building. Centrelink monitored the whole of the area at the rear of the building.
If the characterisation of Mrs Muthubalasuriyar’s injury as one “arising out of, or in the course of, [her] employment” turned on the question whether she was “at” her place of work when she fell, I would favour the view that she was. There are two principal reasons why I would come to that conclusion. The first is that the footpath area had no real function or use other than as a means of access and egress for the Centrelink staff who used the building. The second is that Centrelink effectively controlled access to the footpath from the building itself and, to a significant practical degree controlled access to it from the street level. The only people really likely to access the footpath from the street were those who used the immediately adjacent car parking spaces, and Centrelink completely controlled the use of those spaces.
However, I do not think that in the particular circumstances of this case it is necessary to rely on the inclusive exegesis in SRC Act s 6(1)(b) to come to the conclusion that Mrs Muthubalasuriyar’s injury relevantly arose “in the course of” her employment. In my opinion the circumstances of Mrs Muthubalasuriyar’s injury are properly to be regarded as relevantly analogous to the circumstances in Weaver v Tredegar Iron and Coal Co Ltd [1940] AC 955 to which I referred in paragraph 23 above. In the present case the footpath area, like the railway platform in Weaver, had no real function other than to serve the employer’s personnel. Unlike the railway platform in Weaver, the footpath area could be physically accessed by members of the public. But like Weaver, the public had no right of access and, in fact, rarely did use it. And unlike the situations in Barnard, Green and Chapman, there was no evidence to indicate that either the employer or the building owner must be taken to have encouraged public use of the footpath area.
The reality of the utility of the footpath area was that it was a means of staff egress from the building, and a place for staff to take short work breaks. Centrelink condoned that use. The footpath area had no other practical use or function. In my opinion the passages I have cited from Weaver (in paragraphs 23 and 24 above) are relevantly analogous to the circumstances of Mrs Muthubalasuriyar’s employment and injury. For that reason I conclude that her injury arose in the course of her employment.
Decision
As I indicated in paragraph 5 above, I directed that this stage of the proceedings was limited to consideration of whether or not Mrs Muthubalasuriyar had suffered injuries “arising out of, or in the course of, [her] employment”. In the circumstances where neither the fact, nor the circumstances, of her fall and related fractures was in contest, the direction really posed the question whether those injuries arose “in the course of” her employment. I answer that question in the affirmative.
Consistent with the conditional agreement of the parties (as set out in paragraph 5 above), and having decided that Mrs Muthubalasuriyar’s injuries arose in the course of her employment, I set aside the decision under review. I remit the matter to Comcare to decide, consistently with these reasons and decision, any other question involved in Mrs Muthubalasuriyar’s claim.
I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member.
...............[sgd].........................................................
Associate
Dated 19 March 2013
Date of hearing 26 September 2012 Date final submissions received 12 October 2012 Counsel for the Applicant Mr M Best Solicitors for the Applicant Carroll & O'Dea Lawyers Counsel for the Respondent Ms S Callan Solicitors for the Respondent Norton Rose Australia
14
1