Simon Blackwood (Workers' Compensation Regulator) v State of Queensland (Wide Bay Hospital and Health Service)
[2014] ICQ 17
•26 June 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Simon Blackwood (Workers' Compensation Regulator) v State of Queensland (Wide Bay Hospital and Health Service) [2014] ICQ 017 |
PARTIES: | Simon Blackwood (Workers' Compensation Regulator) v State of Queensland (Wide Bay Hospital and Health Service) |
CASE NO: | C/2013/10; C/2013/41 |
PROCEEDING: | Appeal against decision of Industrial Commission; Cross-appeal against decision of Industrial Commission |
DELIVERED ON: | 26 June 2014 |
HEARING DATE: | 29 October 2013 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1. The appeal (C/2013/10) is allowed; 2. The decision of the Commissioner (WC/2012/326) given at Brisbane on 15 February 2013 is set aside and, in lieu thereof, substituted by a decision that the claim is one for acceptance; 3. The cross-appeal (C/2013/41) filed by the respondent on 9 October 2013 is dismissed; 4. The respondent is to pay the appellant's costs of and incidental to the hearing in the Commission; and 5. No order as to costs in relation to the appeal and cross-appeal before the Court. |
| CATCHWORDS: | WORKERS' COMPENSATION - MEANING OF "INJURY" - INURY WHILE AT PLACE OF WORK OR EMPLOYMENT - "ORDINARY RECESS" - Whether use of toilet facilitates while at work constitutes an "ordinary recess" - Whether worker was temporarily absent from place of work |
| Workers' Compensation and Rehabilitation Act 2003, ss 32, 34, 562, 563 Dodd v Executive Air Services Pty Ltd [1975] VR 668 | |
| APPEARANCES: | Mr S. P. Gray for the appellant, directly instructed. Mr G. C. O'Driscoll for the respondent, instructed by Corrs Chambers Westgarth. |
Decision
On 7 July 2011 Ms Helen Foster lodged an application for compensation for an injury "cervicogenic headache and neck/shoulder pain" which had been diagnosed by Dr Cullinan on 5 July 2011. WorkCover Queensland ("WorkCover") rejected her claim for compensation on 27 February 2012. An application for review against WorkCover's decision was lodged on 13 May 2012. The Regulator set aside the decision of WorkCover on 23 July 2012. The employer's appeal to the Commission was upheld.
The question agitated on the appeal before the Commission was whether Helen Foster was on a recess at the time when she suffered an aggravation of an underlying cervical spine condition when she was going to the toilet. It was not in contention between the parties before the Commission that Ms Foster had a previously diagnosed condition, namely, a cervical spondylosis with a neurological compromise in the right upper limb.
The hearing before the Commission proceeded on the basis of an approved statement of agreed facts:
"Incident of 25 June 2011
9.Ms Foster attended work at Bundaberg Base Hospital on Thursday 23 and Friday 24 June 2011. She did not experience any problems during these shifts.
10.On Saturday 25 June 2011, Ms Foster commenced work at 6:00am at Bundaberg Base Hospital.
11.At approximately 12:00 noon, after finishing IV Antibiotics round, Ms Foster commenced her lunch break.
12.After her lunch break, Ms Foster returned to her rounds.
13.At approximately 1:30pm, in the course of her rounds, Ms Foster went to the toilet facilities located in Surgical Ward 12. Those toilet facilities were located in the nurses' staffroom and were provided for the use of the hospital staff only and Ms Foster was not required to undertake her usual work activities in those facilities.
14.While Ms Foster was seated on the toilet, she turned her head to reach for some toilet paper. At some point during this movement, Ms Foster experienced pain in her neck and headache.
15.After experiencing this neck pain and headache, Ms Foster left the toilet and went to see the Clinical Nurse, Ms Michelle Mullins, at the Nurses' Station.
16.On arriving at the Nurses' Station, Ms Foster sat down, slumped on the desk and informed Ms Mullins that she had a pain in her head. Ms Foster then passed out on the desk.
17.Ms Foster had not complained of any injury or discomfort to other members of Queensland Health's staff prior to arriving at the Nurses' Station.
18.On or about 5 July 2011, Ms Foster lodged an application for workers' compensation in respect of the incident that occurred on 25 June 2011. In support of her application, Ms Foster provided a workers' compensation medical certificate dated 5 July 2011 which stated that she was suffering from cervicogenic headache and neck/shoulder pain."
Grounds of appeal
The grounds of appeal are that the Commissioner erred in law and fact in his interpretation and application of s 34(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") by failing to determine that the personal injuries sustained by Ms Helen Foster on 25 June 2011 did not occur during an ordinary recess.
Cross-appeal
The grounds of the cross-appeal are that the Commissioner erred in law and fact in his interpretation of s 34(1)(c) of the Act by finding that the personal injuries sustained by Ms Helen Foster occurred while she was temporarily absent from her place of employment.
Statutory provisions
Section 32 of the Act relevantly provides:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies."
Section 34 provides:
"34 Injury while at or after worker attends place of employment
(1) An injury to a worker is taken to arise out of, or in the course of, the worker's employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker's employment–
…
(c)while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.
(2) For subsection (1)(c), employment need not be a contributing factor to the injury."
Schedule 6 of the Act defines "place of employment" as:
"the premises, works, plant or place for the time being occupied by, or under the control or management of, the employer by whom a worker concerned is employed, and in, on, at, or in connection with which the worker was working when the worker sustained injury."
Did the injury occur in an ordinary recess?
The Commissioner made the following findings:
"[64]In this case, Foster's use of toilet facilities in the course of her working day would seemingly satisfy the requirement of a temporary absence from employment with the question for the Commission being 'was that absence during an ordinary recess?'.
…
[78]Having considered the evidence, material, authorities and submissions before the proceedings, I make the following findings in respect of this Appeal:
• there was no need to consider the provisions of s. 32 of the Act as Foster's personal injury (aggravation), did not arise out of, or in the course of, employment and employment was not a significant contributing factor to the injury;
• Foster, in accordance with s. 11 of the Act, was a Worker;
•on 25 June 2011 whilst using the toilet in the workplace, Foster suffered an aggravation of a pre-existing condition;
•Foster, in accordance with s. 34(1)(c) of the Act was temporarily absent from the place of employment, however that absence was not during an ordinary recess;
•the fact that her injury occurred outside an ordinary recess is sufficient for a claim for workers' compensation not to succeed despite having occurred during a temporary absence from the place of employment;
•the full provisions of s. 34(1) (c) having not been satisfied meaning the Appeal is upheld, the decision of Q‑COMP is set aside and the claim is therefore not one for acceptance."
It is the appellant's case that the Commissioner misdirected himself when he concluded:
"[69]The significance of each of the judgements was that in the case of a recess there was consistency in that they referred to:
• lunchtime - lunch hours;
• morning or afternoon tea breaks; and
• tea breaks.
All of which are generally entitlements of an employment contract and in terms of the industrial instrument covering the employment conditions of Foster paid lunch breaks were on offer for those who worked 12 hour shifts.
[70]Recess was also associated with:
• rest;
• refreshment; and
• relaxation.
[71]They were (collectively) described as ordinary recesses and certainly there was no reference made to a toilet break being regarded as an ordinary recess."
The primary question before the Commission was the determination of whether the injury occurred during an ordinary recess in accordance with the provisions of the Act. In undertaking that task, the Commissioner's attention should have been focused on the words of s 34(1)(c). In determining the issue of "ordinary recess" the Commissioner has adopted a restrictive approach to the interpretation of the Act.
The respondent submitted that the appellant has not demonstrated any appealable error. It was argued that the Commissioner had correctly informed himself of the binding authorities with respect to the issue of whether Foster was on an ordinary recess when she sustained the relevant personal injury and that this finding was open to him. The appellant submits that Commissioner's interpretation of s 34(1)(c) is inconsistent with the beneficial character of the Act. In short, it is the appellant's argument that the Act is properly classified as beneficial legislation and should be interpreted liberally in favour of the worker. Where there is ambiguity, the construction most favourable to the worker is to be preferred.[1]
[1] Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328, 335; Dodd v Executive Air Services Pty Ltd [1975] VR 668, 679, 682.
As Dixon J observed in R v Wilson; Ex parte Kisch:
"The rules of interpretation require us to take expressions in their context, and to construe them with proper regard to the subject matter with which the instrument deals and the object it seeks to achieve, so as to arrive at the meaning attached to them by those who must use them."[2]
[2] (1934) 52 CLR 234, 244.
In Drummond v Drummond,[3] the Full Court of the Supreme Court of Victoria had to consider "ordinary recess" within the meaning of s 8(2)(a)(ii) of the Victorian Workers' Compensation Act 1951. That case involved a worker who had been employed at a farm run by his father and brother at Walwa, Victoria. He worked on the farm on weekdays and on Saturdays, when he performed work until noon. He was to return to the farm later on Saturday evening to perform further duties. On the Saturday afternoon, the worker went to a football match in Walwa and was injured in a car accident on his way back to work at the farm. It was found, at first instance, to be a compensable injury because the worker "on a working day on which he had attended at his place of employment … was temporarily absent therefrom during [an] ordinary recess".[4]
[3] [1960] VR 462.
[4] Ibid, 463.
The Full Court stated:
"It may be assumed that Saturday was a working day and that his day's work had not finished at noon when he left the farm because he had to return in the evening to perform certain small duties. But was the period from noon until the evening an 'ordinary recess'?
The extended operation of s 8(2)(a) is intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunchtime, or a 'smoko' or similar break normally referred to as a 'recess'. The section extends to injury during such a recess, even though during such recess the worker may be temporarily absent from his place of employment. If on its true construction the extension covers such a case as the present the applicant will be entitled to recover.
But in our opinion the period between noon and the evening on the Saturday when the applicant was injured was not an 'ordinary recess' within the meaning of those words in s 8(2)(a)(ii). The word 'recess' in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or 'smoko'. It is a period of rest incidental to a period of labour, in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day. It would not be an ordinary or natural use of language to speak of the period between noon on Saturday and Saturday evening, a period of some five to six hours, as a 'recess'. It is much more than a brief interruption of an otherwise continuous period of work. It is really a period between the cessation of one period of work and the performance of his evening duties."[5]
[5] Ibid.
In the determination of the meaning of the word "recess", the Full Court was assisted by the word "ordinary" which it said was "more apt to convey the idea that the period in question is one which would ordinarily be described as in recess."[6]
[6] Ibid, 464.
As Lord Atkin observed in Weaver v Tredegar Iron & Coal Co Limited:
"It is well settled that a man injured while taking refreshment on the premises at a permitted hour, or while otherwise relieving necessities of nature, is in the course of his employment."[7]
[7] (1940) 2 All ER 157, 164.
What constitutes an "ordinary recess" in s 34(1)(c) of the Act will need to be determined in accordance with each factual situation. It seems to me that a toilet break is an "ordinary recess" for the purposes of s 34(1)(c). It is "a break or interruption of limited duration in the continuity of a normal working day".[8]
[8] Landers v Dawson (1964) 110 CLR 644, 654 (Windeyer J).
Was the worker temporarily absent from her place of employment?
It was the respondent's case on the cross-appeal was that the Commissioner erred in his interpretation of s 34(1)(c) of the Act by determining that the personal injuries sustain by Foster on 25 June 2011 occurred whilst she was temporarily absent from her place of employment. It was submitted by the respondent (cross-appellant) that the term "place of employment" in sch 6 of the Act would include the toilets provided by the employer for the exclusive use of hospital staff and adjunct to the Ward and Nurses' Station. It was submitted that there was no "magical line" at the end of the ward that the worker steps over and is temporarily absent from her place of work. The contra argument of the respondent was that the definition of "place of employment" requires consideration of where the worker ordinarily undertakes his or her work activities. The Court was referred to Woolworths Ltd v Q-COMP[9] where it was held that an injury which occurred during a lunch break in a lunchroom provided by the employer did not satisfy the second limb of the definition of "place of employment", specifically, "in, on, at, or in connection with which the worker was working when the worker sustained the injury."
[9] (Unreported, Industrial Magistrates Court of Queensland, Industrial Magistrate Cull, 1 October 2008).
In WorkCover Queensland v Dreadon,[10] Moynihan J considered the meaning given to the phrase "place of employment":
"The second requirement of the definition indicates that not every piece of land or property occupied or under the control or management of the employer is necessarily every employees 'place of employment'. There must be a connection between the land or property and the work duties of the employee. Consequently, the definition must be applied to each case on its own facts. Whether there is a connection is relative to the nature of employment. The car park where the injury occurred is conceded by the parties to be under the control of the employer. However it cannot be said that the car park is a place in connection with which the worker was working when he was injured. The respondent was employed by Australian Meat Holdings Industry as a knife hand. At the time of the injury, the respondent had completed his work for the day and had walked to his car in the car park in order to travel home. The carpark is merely a facility supplied by the employer for the use of the employees. On a different set of facts, it may be that the car park could be characterised as the 'place of employment'. For example, if an employee had duties which included maintenance of the car park.
On this interpretation of the definition of 'place of employment' the appellant fails on both grounds of appeal. The car park, while under the control of the employer, was not an area in connection with which the worker was working when the injury occurred and is not the respondent's 'place of employment'. Thus, the respondent's journey between his place of employment and his home had begun while he was in the car park and the injury can be characterised as one falling within s 37(1)(a) of the Act."[11]
[10] WorkCover Queensland v Dreadon (1999) 161 QGIG 775.
[11] Ibid, 777.
The Commissioner was entitled, in considering where the worker ordinarily undertook her work, to conclude that the toilet facilities, whilst still within the same building and under the control of the employer, was not an area in connection with which the worker was working when the injury occurred and consequently not the "place of employment".
The agreed statement of facts included at paragraph 13 the following:
"At approximately 1:30pm, in the course of her rounds, Ms Foster went to the toilet facilities located in Surgical Ward 12. Those toilet facilities were located in the nurses' staffroom and were provided for the use of the hospital staff only and Ms Foster was not required to undertake her usual work activities in those facilities."
The conclusion drawn by the Commissioner at paragraph [64] of his reasons for decision was the only one open to him on the facts before the Commission. The respondent has not shown on the cross-appeal that the Commissioner erred in his interpretation of s 34 and in coming to the determination that he did.
Costs
I do not regard either the appeal or cross-appeal to this Court as having been instituted vexatiously or without reasonable cause and so, pursuant to s 563 of the Act, there should be no order as to costs.
Orders
I make the following orders:
1.The appeal (C/2013/10) is allowed;
2.The decision of the Commissioner (WC/2012/326) given at Brisbane on 15 February 2013 is set aside and, in lieu thereof, substituted by a decision that the claim is one for acceptance;
3.The cross-appeal (C/2013/41) filed by the respondent on 9 October 2013 is dismissed;
4.The respondent is to pay the appellant's costs of and incidental to the hearing in the Commission; and
5.No order as to costs in relation to the appeal and cross-appeal before the Court.
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