| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SMITH -v- RANGER CAMPING & OUTDOORS PTY LTD [2014] WADC 40 CORAM : BIRMINGHAM QC DCJ HEARD : 7 AUGUST 2013 DELIVERED : 2 APRIL 2014 FILE NO/S : APP 83 of 2012 BETWEEN : DEE SMITH Appellant
AND
RANGER CAMPING & OUTDOORS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA Coram : ARBITRATOR S MELVILLE Citation : A81 Catchwords: Appeal - Workers' Compensation and Injury Management Act 1981 - Employee suffering injury whilst assisting victim of road accident - Whether injury suffered in the course of her employment - Principle in Hatzimanolis - Whether arbitrator identified and applied correct test - No error of law Legislation: Workers' Compensation and Injury Management Act 1981 Result: Leave to appeal granted
Appeal dismissed
Representation: Counsel:
Appellant : Mr T J Hammond
Respondent : Mr P E Jarman
Solicitors:
Appellant : Slater & Gordon
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Blacktown City Council v Smith [1996] NSWSC 52
Catholic Education Office of WA v Granitto [2012] WASCA 266
Comcare v PVYW [2013] HCA 41
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Re Monger; Ex parte Dutch (2001) 25 WAR 96
1 BIRMINGHAM QC DCJ: On 3 November 2010 the appellant was driving along Forrest Highway towards Busselton to collect some equipment on behalf of her employer.
2 During the journey, the vehicle travelling immediately in front of the appellant collided violently with another vehicle. The appellant stopped her vehicle and, together with other passers-by, sought to assist those persons injured in the collision. In so doing, the appellant observed that the driver of one vehicle had suffered severe head injuries. The appellant stayed with that person, offering such assistance as she could until he died from his injuries approximately half an hour later. Thereafter, the appellant remained at the scene for some time and provided a statement to the attending police officers in relation to the events witnessed by her. The appellant informed her office that she would cancel her trip to Busselton and returned to Perth. She attended her medical practitioner later that day complaining of feeling unwell. Over the ensuring three weeks, despite feeling unwell, the appellant continued to work, however on 30 November 2010 she was certified unfit for work. The appellant was subsequently diagnosed as suffering a post-traumatic stress disorder with reactive depression and anxiety. 3 Thereafter the appellant commenced proceedings against the respondent seeking weekly payments of compensation from 30 November 2010 pursuant to Workers' Compensation and Injury Management Act 1981 (the Act). It was the appellant's case that she was totally incapacitated as a result of injuries suffered from her witnessing the incident on 3 November and its immediate aftermath, including the death of the driver that she had assisted. 4 By s 18 of the Act if an injury of a worker occurs, the employer shall be liable to pay compensation in accordance with sch 1. Relevantly, s 5(a) of the Act defines injury to include a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions. 5 On 28 September 2012 the appellant's application for compensation was dismissed – Registrar Melville finding that the appellant did not suffer a compensable injury insofar as the respondent was not liable in respect of the injuries suffered by the appellant. Whilst the arbitrator was satisfied that the appellant had suffered the injury alleged, the arbitrator found that such injury did not occur by accident arising out of or in the course of the employment of the appellant. 6 It is from that decision that the matter comes before this court by way of appeal pursuant to s 247 of the Act. 7 Section 247 relevantly provides that a party may with the leave, appeal to the District Court against an arbitrator's written decision. The court is not to grant leave unless a question of law is involved. 8 In Re Monger; Ex parte Dutch (2001) 25 WAR 96 Malcolm CJ stated [11]: Where the ultimate fact in issue (the factum probandum) involves a term used in a statute, the question whether the facts found adduced by the evidence and found (facta probanda) establish the ultimate fact is, at least generally, if not always, a question of law: see Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J. 9 It was convenient to deal with the application for leave and the appeal at the same time – the question of leave to be dealt with after considering the merits of the grounds of appeal. 10 The central issue for the appeal is whether the factual material placed before the arbitrator compelled a finding that the appellant's injury was in fact suffered in the course of her employment. I am satisfied that such question is a question of law and consequently amenable to review by this court. I would grant the appellant leave to appeal the decision. 11 Where leave is granted, the appellant must still establish a proper basis for disturbing the arbitrator's decision by pointing to some error in it: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20], [26]; Catholic Education Office of WA v Granitto [2012] WASCA 266 [57]. 12 There is no dispute that the appellant immediately developed a post-traumatic stress disorder with an associated major depressive disorder as a result of witnessing the accident and the subsequent death of the driver. Such finding by the arbitrator is amply supported by the evidence of Psychiatrist Dr Frederick Ng in his report dated 18 May 2011 (AB page 149 – 161) and unchallenged. Dr Ng records (AB page 154) that as the appellant tried to assist and comfort the injured driver she could see and hear what was happening and witnessed him expiring. The appellant described to Dr Ng how every detail of the incident was 'etched' into her mind and that she recalled the event with intrusive images of the face of the deceased man. Dr Ng considered that the appellant's injury, with the onset of the post-traumatic stress disorder, was caused by the events witnessed by the appellant at the scene of the accident on 3 November. 13 It is the appellant's case on appeal that the arbitrator erred in determining that there was insufficient connection between the injuries suffered by the appellant and her employment for the injury to have occurred 'in the course of the employment'. The appellant says that in making this error, the arbitrator failed to apply the appropriate legal test as to what constitutes an injury as defined in the Act. 14 The arbitrator's decision is to be found in of his reasons as follows [68] – [72]: 68. The question of what constitutes 'in the course of the employment' has recently been revisited by the Commissioner of the Dispute Resolution Directorate in Overstone v Fire and Emergency Services C4/2009. In that case the Commissioner summarised numerous decisions, both of the High Court and the Supreme Court of Western Australia, culminating in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. In paragraph 6 at page 5 of his Reasons, the Commissioner said: These authorities and other establish that for the purposes of the law of workers' compensation the 'course of the employment' covers not only the actual work which a worker is employed to do, but also the doing of anything which is 'incidental to his services' (which may include an accident which occurs during an interval between two periods of work'. In the latter case the test is whether the worker's act was; reasonably required, expected or authorised to be done in order to carry out his actual duties' (see Speechley per Dixon J at 133 and Henerson v Commissioner of Railways (WA) (1937) 58 CLR 281 per Dixon J at 294). For the purposes of this element, it is not necessary for the worker to establish any causal connection between the employment and the injury. It is sufficient if the injury occurs while the worker is performing work that he was engaged to do or something reasonably incidental to that work'. 69. The Commissioner, at paragraph 20 observed that the enquiry into the nature of the employment duties, expectations, requirements and authorities need to be carried out flexibly, liberally and practically, with regard to the general nature, terms and circumstances of the employment and not just those operative on the particular occasion. 70. In this case the worker was employed as an administration manager. The evidence as to what that role entailed has been referred to in paragraphs 49 above. On 30 November 2010 her role involved travelling to Busselton to collect property that belonged to the respondent. It is clear that the worker was not employed as an ambulance officer or any other form of Emergency Services worker. In other words, providing assistance to people injured in motor vehicle accidents was not part of the contract of employment, and the question then becomes whether the evidence satisfies me the worker's involvement in providing assistance in the accident, was an act that was 'reasonably required, expected or authorised to be done in order to carry out her actual duties'. In this regard, the worker is required to satisfy me on the balance of probabilities, a requirement that demands more than a mechanical comparison of probabilities independently of any belief in its reality. To discharge this burden, consideration must be given to the gravity of the issue and the consequences that flow from the decision. Caution should be exercised when the burden is sought to be discharged by the use of inexact proofs, indefinite testimony and indirect inferences. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. 71. In my opinion there is no evidence upon which I can find, or on which I am prepared to find, this formed part of the worker's contract of employment, either impliedly or expressly. Nor, in my opinion, is there any evidence upon which I can find, or on which I am prepared to find, that the worker was reasonably required or expected or authorised to perform these acts. I am reinforced in my views that the contraction of the traumatic stress disorder and major depression was not in the course of her employment by the decision of the Workers Compensation Board of S Drury v Industrial Roofing Contactrs Pty Ltd WCR (WA) 1982 Vol 1, Pt. 1, p.30 in which the Board refused to order compensation to a worker who, in a journey between two places of work, was injured whilst stopped and assisting a truck driver secure what he regarded to be a dangerously secured load. In so doing, the Board distinguished the decision of the Supreme Court of New South Wales in Rivett v The Commissioner for Railways and the basis of it was dealing with what constituted 'a break' in the 'journey provisions' and not 'in the course of the employment'. 72. I am unable to find that the worker sustained an injury as defined in s.5 (a). This being the case, the employer's argument advanced pursuant to the provisions of s.19 becomes irrelevant. 15 The appellant says the learned arbitrator was in error in finding that the activity of the appellant in providing assistance to persons injured in a motor vehicle accident was not part of the appellant's contract of employment and further, that it was not an activity that was 'reasonably required, expected or authorised to be done in order to carry out her actual duties'. 16 The appellant contends that the correct approach required consideration of what the appellant as a worker was doing at the time of the injury and whether the activity giving rise to the injury was one which a reasonable employer would have expected the appellant as an employee to do – that is to say, something that would be regarded as incidental to the employment. 17 Counsel for the appellant referred to the unreported decision of Blacktown City Council v Smith [1996] NSWSC 613 by way of illustration of such approach. In Blacktown City Council v Smith the employee was found to have suffered a compensable injury when going some 20 paces up the corridor to the assistance of a person being assaulted in an office that was situated near to that of her place of employment. The court was then satisfied that the course of the employment of the worker, 'in the absence of the employer and so without being able to seek permission', extended to attending to a cry for help at a nearby location. 18 It is accepted that actions in the course of employment may also include those that are incidental to the employment: Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. 19 Recently in Comcare v PVYW [2013] HCA 41 the High Court revisited the principles as formulated in Hatzimanolis to decide whether injuries suffered by the worker in Comcare were injuries that arose out of or in the course of her employment. 20 The High Court said: 34. It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer's liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee's employment. It did so by characterising the interval by reference to the employer's inducement or encouragement. The employer's liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer's liability beyond that. 35. Because the employer's inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs. 36. Moreover, it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstances in which it occurred and the employment itself. It achieves that connection by the fact of the employer's inducement or encouragement. Thus, where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so. 37. That this must be so is confirmed by a consideration of the legal reasoning involved in applying the principle stated in Hatzimanolis to the facts of a case. That process of reasoning does not commence with the fact of the employer's inducement or encouragement. The joint reasons sought to direct attention to the new principle and therefore stated it out of the order in which the enquiries inherent in applying the principle would arise for consideration. Applying the Hatzimanolis principle 38. The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment. 21 Further: 60. The principle in Hatzimanolisshould nevertheless be understood to have sought, and achieved, a connection or association with employment. For present purposes that understanding is helpful to explain, if it be necessary, that for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place. 22 In the present case, the critical question to be addressed by the arbitrator was whether the evidence satisfied him that the appellant's activity in remaining at the scene and providing assistance was an act that was reasonably required, expected or authorised to be done in order to carry out her actual duties or necessarily incidental thereto. 23 The arbitrator was not satisfied on the evidence that the appellant was required to perform the duties of rendering assistance at the scene of an accident as part of her contract of employment either expressly or impliedly. Further, the arbitrator was not persuaded that the appellant was reasonably required to, expected or authorised to perform such activity. That is to say, that the respondent did not induce or encourage the appellant to remain at the scene and render assistance to the victim of a traffic accident. 24 I am satisfied that in making the findings at [68], [70], [71], the arbitrator identified and applied the correct test. He first determined how the injury was brought about. He then considered what the employee was doing at the time and whether the employer induced or encouraged the employee to engage in the activity during which the employee suffered the injury. 25 In the present case, the activity undertaken by the appellant when she suffered the injury was her action in attending and rendering assistance to the accident victim and thereafter remaining at the scene. Unlike the circumstances in Blacktown City Council v Smith the scene of the accident was not her place of employment or a place incidental to it. 26 Whilst the journey to Busselton was being undertaken pursuant to the employer’s instruction, the activity that caused the appellant's injury was her conduct in remaining at the scene to provide assistance to the injured truck driver and witnessing his death some time later during an interruption to that journey. 27 The respondent did not engage or encourage the appellant to provide assistance to the victim of a motor vehicle accident. Further, there was no basis to infer that the respondent, as employer, would expect an employee to assist the victim of a motor vehicle accident that has no connection whatsoever with the employment or where the employee was not personally involved in the accident. 28 As properly identified by the arbitrator, there is no legal obligation on any person who is not directly involved as a driver of a vehicle involved in the accident to stop and render assistance. The only duty imposed upon a witness such as the appellant is to provide her name and address to a police officer attending the scene if requested to do so: s 54(3) Road Traffic Act 1974. 29 In his reasons [71], the arbitrator found that there was no evidence that the appellant was reasonably required or expected or authorised by the respondent to provide assistance to persons injured in the motor vehicle accident. Furthermore, there was no evidence that the respondent induced or encouraged the appellant to engage in such activity. 30 In such circumstances the finding of the arbitrator that the injuries were not suffered in the course of the employment is consistent with the evidence and in accordance with the correct application of principle. Such findings were open on and consistent with the evidence in the case and did not involve any error on the part of the arbitrator in identifying the relevant facts and applying them to the identified principles. 31 As properly acknowledged by the arbitrator, the actions of the appellant were commendable, however, she was not engaged in an activity for which her employer was responsible in respect of the injury suffered in so doing. 32 In the circumstances, I am satisfied that in dismissing the appellant's claim, the learned arbitrator did not make any error of law and the appeal must be dismissed. 33 Orders: |