Stathopoulos and Comcare (Compensation) - [2018] AATA 651

Stathopoulos and Comcare (Compensation) [2018] AATA 651 (21 March 2018)

Division:General Division
File Number: 2017/0982
Re:RHONDA STATHOPOULOS
APPLICANT

AndCOMCARE
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:21 March 2018
Place:Melbourne

The Tribunal:

1.sets aside the reviewable decision of the respondent dated 3 January 2017; and
2.substitutes a decision that the applicant’s injury was sustained in the course of her employment within the meaning of s 6(1) of the Safety, Rehabilitation and Compensation Act 1988.

.......................[sgd]................................................

Deputy President S A Forgie

COMPENSATION – injury sustained by employee while walking through car park to work – car park used by employees of Department of Human Services – injury arises out of, or in the course of, employment – reviewable decision set aside and substituted

LEGISLATION

Acts Interpretation Act 1901 s 15AB

Commonwealth Employees’ Compensation Act 1930

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 5A, 5B, 6, 14

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006

Workers’ Compensation Act 1926 (NSW)

CASES

Comcare v Mather and Mitchell [1995] FCA 1216; (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297

Comcare v O’Dea [2009] AATA 499

Comcare v PVYW [2013] HCA 41; [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1

Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
Foster v Edwin Penfold & Co Limited 27 BWCC 240

Grech v Commonwealth of Australia 1 DCR (NSW) 108

Gregory v Comcare (1997) 72 FCR 196

Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611

Humphrey Earl v Speechley [1951] HCA 75; (1951) 84 CLR 126

John Stewart and Son Ltd v Longhurst 10 BWCC 266

Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Learmonth v H&A Bag Company [1944] WCR 131

M Ayling v Wende Bros [1962] WCBD (WA) 193

Mendez v Telstra Corporation [1998] NSWSC 504; (1998) 147 FLR 394

Re Barnard and Australia Post Corporation [2008] AATA 507

Re Ford and Comcare [2018] AATA

Re Perera and Comcare [2009] AATA 499

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115; 218 ALR 733; 41 AAR 355; 85 ALD 257

Telstra v Bowden [2012] FCA 576; (2012) 206 FCR 207; 292 ALR 61; 129 ALD 520

The Star Pty Ltd v Mitchison [2017] NSWCA 149

Stewart v Metropolitan Water, Sewerage and Drainage Board [1932] HCA 45; (1932) 48 CLR 216

Weaver v Tredegar Iron and Coal Co Ltd [1940] 3 All ER 157

Sparey v Bath Rural 24 BWCC 414

Victorian Workcover Authority v Jones Lang Lasalle (Vic) Pty Limited [2012] VSC 41

SECONDARY MATERIALS

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006

REASONS FOR DECISION

Deputy President S A Forgie

Mrs Rhonda Stathopoulos, who is an employee of the Department of Human Services (DHS), lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). She lodged her claim in respect of an injury she sustained at approximately 8.53am on 4 October 2016 when she fell and hit her head. At the time, she was walking from her car in a car park connected with the building in which she worked. On 11 November 2016, a delegate of Comcare accepted that Mrs Stathopoulos had sustained a head injury – mild concussion, positional vertigo, neck sprain and lumbar back pain. He did not accept that Comcare was liable for her injuries on the basis that he found that they had not arisen out of, or in the course of, her employment. Another delegate of Comcare affirmed that decision on 3 January 2017. I have decided that Ms Stathopoulos’s injury was sustained in the course of her employment within the meaning of s 6(1) of the SRC Act.

BACKGROUND

There is no dispute regarding many of the facts in this case. In light of that and on the basis of the evidentiary material, I have made the findings of fact that are set out in the following paragraphs.

Mrs Stathopoulos worked as a Service Officer with DHS and performed customer service and general administration duties. She was an “employee” within the meaning of s 5 of the SRC Act.[1] An outline of her work is contained in the Brief Job Description, which appears on the Job Task Analysis prepared for a Service Officer – APS 4 Service Centres:
“Service Officers (SO4) work with customers facing significant disadvantage or multiple complex challenges who require coordinated assistance. They work across one or more service delivery channels to provide a tailored service to the customer by assessing needs and determining entitlements and obligations. Where appropriate, Service Officers (SO4) collaborate with others and connect with relevant government or community services to deliver the best service offer, encourage the use of self-managed and digital services, and support operations.
Service Officers (SO4) work under the support and general direction of their leadership groups, and make decisions within defined legislative and policy parameters. They exercise a degree of discretion when interpreting and applying procedures and guidelines. Service Officers (SO4) undertake their work to achieve results in line with agreed goals and business plans”[2]
[1] SRC Act; s 4(1)
[2] T documents; T4.10 at 60

Mrs Stathopoulos carried out her duties at a Centrelink office located in a two storey building. DHS leased what are described as “Premises” in the building. The “Premises” are described in Item E and hatched on the plans in Schedule 3 of the Lease between the Landlord and DHS. DHS leased areas on both the ground and first floors of the building.[3] For the most part, those areas cover all areas of those two floors other than the Common Areas. The term “Common Areas”:
“means those areas of the Land and Building provided for common use by the Tenant and other occupants of the Building or members of the public including walkways, pavements, docks, driveways, access and egress roads, the entrances, lobbies, corridors, passages, stairways, lifts, escalators, toilets, tearooms and washrooms in the Building.”[4]
[3] Lease; cl 2.1 with reference to definition of “Premises” in 1.1.1 and to Item E and Schedule 3: Exhibit 2
[4] Lease; cl 1.1.1

DHS was given exclusive rights to twenty Car Parking Bays under the lease.[5] Clause 27 of the Lease provided:
[5] Lease, cl 27 with reference to definition of “Car Parking Bays” in cl 1.1.1, Item G and Schedule 4
“27.1 Tenant has exclusive rights to the Car Parking Bays
27.1.1The Tenant is entitled to the exclusive use of the Car Parking Bays and the unrestricted ingress to and egress from those bays.
27.1.2The Tenant may at any time and upon giving no less than 30 days [sic] notice to the Landlord terminate its use of any or all of the Car Parking Bays.
27.1.3The Landlord must ensure that any car parking contractor appointed by it is made aware of the Tenant’s rights under this clause 27.”

On 4 October 2016, Mrs Stathopoulos parked in Car Parking Bay No 21 at approximately 8:53am. This was not one of the 20 Car Parking Bays identified in Schedule 4 to the Lease. In all, there are 48 Car Parking Bays in the car park that is located under the building.[6] Access to the Ground and first floors of the building in which the Premises are located can be gained from the car park by means of a lift or the stairs but a security pass is required to enter either the stairway or the lift.[7]
[6] Witness Statement of Ms Alexandra Sandhu dated 16 June 2017 at [4a] (Exhibit 4) and see also an enlarged plan of the car park at Exhibit 3 and the Witness Statement of Mr Warren Tie dated 20 June 2017 at [2] and [5] (Exhibit 5).
[7] Email from Ms Sandhu to Mrs Stathopoulos dated 21 November 2016

THE EVIDENCE

In her statement dated 16 June 2017, Mrs Sandhu said that there is signage outside the Car Park stating that it is a private car park. Ms Sandhu is a Service Centre Manager with DHS and has worked with DHS for over 11 years. Every now and again, she said, Centrelink customers would park in the Car Park but that happened only rarely. In her email to Mrs Stathopoulos on 21 November 2016, Ms Sandhu wrote that “… For the security of the staff and the cars parked under the building the best practice is for the gates to be closed between 10 am and 3 pm.”[8] She expanded on this in [3] of her statement:
“a. Only a couple of the people in the Oakleigh office have remote controls to open the gate to the car park.
b.The gates to the car park are closed by the last person in at 10am, and opened by the first to leave at 3pm.
c.Some days the gates do not get closed.
d.There is no pattern as to when the gates are open and when they are closed, however they are open more than they are closed.”[9]
[8] T documents; T1 at 11
[9] Exhibit 4

A sign placed on the wall next to the lift read:[10]
[10] T documents; T1 at 19

IS IT AFTER 10am?
DID YOU CLOSE
THE GATE

Staff
Entry

Ms Sandhu gave oral evidence. When she had first arrived at the Service Centre in or about October 2014, there had been no formal roster for the use of the Car Parking Bays. Whoever arrived first had the right of occupancy. As the workforce increased in size, the leadership team worked out a more equitable way of allocating the Car Parking Bays. The Service Centre, which was one of the DHS teams in the building, should not have pole position as it were just because their day started earlier. Therefore, the leadership decided to divide the total number of Car Parking Bays by the number of teams in the Premises and each team allocated within its allocation. The leadership team did not limit itself to the 20 Car Parking Bays shown on DHS’s lease but included all of the Car Parking Bays in the Car Park on the basis that the landlord was not exercising its rights in relation to them.[11] Had the Landlord wanted to exercise its rights, she would have given DHS staff immediate notice that they were not to use those Car Parking Bays.
[11] Exhibit 1; T1 at 14

Ms Stathopoulos said that the first person in to the Car Park in the morning would have a “clicker” and open the gate. The last person out of the Car Park would also have a “clicker’ and use it to shut the gate. She did not need to open the Car Park that morning. She had parked her car and taken about four steps before slipping and falling backwards into Car Parking Bay 33 or between Car Parking Bays 33 and 34.

Mr Warren Tie is a Corporate Support Officer and has been working with DHS for the past 25 years. He wrote about his understanding of the usage of the Car Park in his statement dated 20 June 2017:
“4. On 9 November 2016 I had a telephone conversation with Mr Duff [Support Officer for Property & Facilities Group Victoria] during which I advised him that the gate to the car park … stayed open the majority of the time. To enter the staff car park staff use a push button remote control to open and close the gate. There are 10 remote control units available to DHS. DHS does not lease all of the car spots in the car park, and there is no card or swipe access to the car park …
5.Further to my discussion with Mr Duff, I advise that someone was meant to close the gate at 10am each morning, but from my observations this didn’t occur the majority of the time, although this has since changed. The lease sets out that DHS was entitled to use 20 of the 48 available car spots, and the remaining 28 car spots were reserved for the landlord of the … office.”[12]
[12] Exhibit 5

Ms Sue Waltrowicz is the Senior Rehabilitation Case Manager at DHS. She asked Mr Tie for any CCTV footage of the incident in which Mrs Stathopoulos fell in the Car Park. On 14 December 2016, Mr Tie replied:
“Was able to check the CCTV footage of the carpark at … today, we have 2 cameras down there but unfortunately neither covers the parking spot in question.”[13]
[13] Exhibit 5 at 2

THE SUBMISSIONS

On behalf of Comcare, Ms Blok of counsel submitted that whether or not Mrs Stathopoulos is entitled to compensation depends on whether or not it arose out of, or in the course of, her employment. Comcare relied on the judgment of the majority of the High Court in Roncevich v Repatriation Commission[14] (Roncevich) when they said that the expression “arising out of” involves a consideration of:
“… such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. …”[15]
Determination of whether an injury was “in the course of employment” is answered by reference to the words of Dixon J in Humphrey Earl v Speechley:[16]
“… [T]he question whether it occurs in the course of employment must depend on the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties …”[17]
[14] [2005] HCA 40; (2005) 222 CLR 115; 218 ALR 733; 41 AAR 355; 85 ALD 257; McHugh, Gummow, Kirby, Callinan and Heydon JJ
[15] [2005] HCA 40; (2005) 222 CLR 115; 218 ALR 733; 41 AAR 355; 85 ALD 257 at [23]; 125; 364; 265 per McHugh, Gummow, Callinan and Heydon JJ
[16] [1951] HCA 75; (1951) 84 CLR 126; Dixon, McTiernan, Williams, Webb and Fullagar JJ
[17] [1951] HCA 75; (1951) 84 CLR 126 at 133
In so far as journeys to work are concerned, Ms Blok submitted that they are not “in the course of employment” and relied on a judgment of the New South Wales Court of Appeal in Mendez v Telstra Corporation[18] (Mendez). She also relied on the judgment of Murphy J in Telstra v Bowden[19] as authority for her contention that Mrs Stathopoulos’s injury was neither an incident of, nor causally connected with, her employment. She was not travelling for the purpose of her employment when she sustained her injury. Had she been, that would have brought her injury within the scope of s 6(1)(d) of the SRC Act. She was, however, travelling between her residence and her usual place of work within the meaning of s 6(1C) and that took her outside of the scope of s 6(1)(d). Ms Blok relied on the decisions of the Tribunal in Re Barnard and Australia Post Corporation[20] (Barnard) and Re Perera and Comcare[21] (Perera) as well as the passage from the judgment of North J in Comcare v O’Dea[22] (O’Dea) when he said:
“… [T]he use of the word ‘place’ in either of the expressions ‘place of work’ or ‘place of residence’ connotes a defined area, normally the whole area of the work place or residence or, to put the matter in another way, the area over which the owner or legal occupier of the area has control.”[23]
[18] [1998] NSWSC 504; (1998) 147 FLR 394; Mason P, Handley JA and Sheppard A-JA
[19] [2012] FCA 576; (2012) 206 FCR 207; 292 ALR 61; 129 ALD 520
[20] [2008] AATA 507; Senior Member Penglis
[21] [2009] AATA 499; Deputy President Constance
[22] [1997] FCA 1409; (1997) 150 ALR 318; 26 AAR 252
[23] [1997] FCA 1409; (1997) 150 ALR 318; 26 AAR 252 at 325; 260
In its current form, the SRC Act reflects amendments made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (2007 Amendment Act). Comcare relies on the passage from the Outline to the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 where it is said:
“The principal amendments will:
· …
·remove claims for non work-related journeys and recess breaks where the employer has not control over the activities of the employee;
·…”[24]
[24] Explanatory Memorandum at i and see [32.4] of the Respondent’s Statement of Issues, Facts and Contentions
At page xii of the Explanatory Memorandum, the following statement is made and Comcare also relies on it:[25]
“When an employee is undertaking a journey other than a purely work-related journey, for all practical purposes the employer has no control over the circumstances of the journey or the employee’s behaviour. It is inappropriate that an employer could be liable for injuries sustained by an employee during these journeys notwithstanding that the employer fully complies with all occupational health and safety requirements in that employee’s workplace.”
[25] Respondent’s Statement of Issues, Facts and Contentions; [32.5]
LEGISLATIVE FRAMEWORK

The SRC Act is an Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers’ compensation for those employees and certain other persons.[26] Section 14(1) provides that:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
[26] SRC Act; Long Title

The Part which qualifies Comcare’s liability is Part II. The first two of the qualifications are found in s 14 itself. The first, set out in s 14(1), is that compensation is not payable in respect of an injury that is intentionally self-inflicted. The second, which is set out in s 14(2), provides that compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. Neither qualification is relevant in the circumstances of this case.

Other sections in Part II make provision for specific types of compensation. A separate claim must be made for each type of compensation. Apart from compensation provided for in s 15,[27] each type of compensation depends on an employee’s having first suffered an injury.[28] That is determined under s 14. Each element of s 14(1) needs to be considered.
[27] Section 15 provides that Comcare is liable to pay compensation to an employee if that employee has an accident arising out of, or in the course of, his or her employment by the Commonwealth or a licensed corporation and the accident does not cause an injury to the employee but results in the loss of, or damage to, property used by the employee.
[28] Provision is made for compensation in respect of medical expenses (s 16), death (s 17), funeral expenses (s 18), incapacity for work (ss 19 – 21A and 23), maintenance in hospital (s 22), repayment of salary, wages or pay and re-crediting of leave (s 23A), permanent impairment (ss 24-28) and household and attendant services (ss 29-29A). Sections 30 to 33 are concerned with the redemption of compensation and payment of compensation.

Mrs Stathopoulos is an “employee” for the purposes of the SRC Act. Has Mrs Stathopoulos suffered an “injury”? The word “injury” is defined in s 4(1) with reference to s 5A. Section 5A(1) provides:
“In this Act:
Injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)is an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”

Section 5A(2) relates to the meaning of “reasonable administrative action” and, again, is not relevant in this case.

Mrs Stathopoulos did not suffer a disease, which is defined in s 5B, but an injury. The definition of “injury” must also be read with the provisions of s 6. Beginning with s 6(1), it provides:
“Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c)while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i)associated with the employee’s employment; or
(ii)at the direction or request of the Commonwealth or a licensee; or
(d)while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or
(e)while the employee was at a place of education, except while on leave without pay, in accordance with:
(i)a condition of the employee’s employment by the Commonwealth or a licensee; or
(ii)a request or direction of the Commonwealth or a licensee; or
(iii)the approval of the Commonwealth or a licensee; or
(ea)while the employee was travelling between the employee’s place of work and a place of education for the purpose of attending that place in accordance with:
(i)a condition of the employee’s employment by the Commonwealth or a licensee; or
(ii)       a request or direction of the Commonwealth or a licensee; or
(ii)the approval of the Commonwealth or a licensee; or
(f)        while the employee was at a place for the purpose of:
(i)        obtaining a medical certificate for the purposes of this Act; or
(ii)       receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or
(iv)      receiving a payment of compensation under this Act; or
(v)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(vi)receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or
(g)while the employee was travelling between the employee’s place of work and another place for the purpose of:
(i)obtaining a medical certificate for the purposes of this Act; or
(ii)receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or
(iv)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(h)while the employee was, at the direction or request of the Commonwealth or a licensee, at a place:
(i)outside Australia and the external Territories; and
(ii)declared by the Minister by legislative instrument to be a place to which this paragraph applies; or
(i)while the employee was:
(i)at the direction or request of the Commonwealth or a licensee, at a place outside Australia and the external Territories; and
(ii) a member of a class of employees declared by the Minister by legislative instrument to be a class to which this paragraph applies.”

Sections 6(1A) to (3) qualify some of the provisions in s 6(1). Section 6(3), for example, provides that:
“Subsection (1) does not apply where an employee sustains an injury:
(a)while at a place referred to in that subsection; or
(b)during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”

Section 6(2) modifies s 6(1)(d), which treats an injury that an employee sustained while travelling for the purpose of his or her employment at the direction or request of the Commonwealth or of a licensee as an injury that arose out of, or in the course of, that employment. It provides that:
“In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f).”

The places that are mentioned in ss 6(1)(e) and (f) are a place of education in the former and specific places related to medical or rehabilitation treatment or examinations or payment of compensation or other moneys described in the latter.

Section 6(1C) is also concerned with s 6(1)(d) when it provides:
“For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.”
Sections 6(1A) and (1B) are concerned with describing when a journey from a place of residence[29] starts. Section 6(1A) provides:
[29] The expression “place of residence” is defined in s 4(1) but it is not relevant in this matter.
“For the purposes of this section:
(a)a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or
(b)a journey to such a place of residence is taken to end at that boundary.”

Section 6(1B) assists in identifying where the boundary of the land where the employee’s place of residence is located:
“If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel.”

The expression “place of work” is defined in s 4(1) of the SRC Act:
“place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.”
CONSIDERATION

I will first set out the way in which the terms and expressions used in the SRC Act have been understood before considering how the law applies to the circumstances in which Mrs Stathapoulos sustained her injury.

The expression “arising out of, or in the course of, employment”

Although I appreciate that an injury may, on occasion, be said both to have “arisen out of” an employee’s employment and to have been sustained “in the course of” that employment, I have briefly set out what is meant by each of those expressions. I have done so without reference to any of the extensions of their meaning appearing in ss 6(1)(a) to (i) or any qualification of those extensions but will then return to them for they raise different issues.
A. Injury sustained “in the course of” employment
The meanings of the two terms are more often explained by reference to their context than by any attempt to give an empirical meaning to each. A sense of the meaning of the expression “in the course of” employment is to be found in the judgment of Cooper J in Gregoryv Comcare[30] (Gregory). Mr Gregory had been a member of the Fire Section in the RAAF and was about to be discharged. A farewell barbecue, catered for in part by RAAF cooks, was organised for him at the Airmen’s Club on a RAAF base. All members of the Fire Section and their families were invited. Mr Gregory’s roster was altered so that he was not rostered for duty on the day and could attend. He was injured during an impromptu soccer match held at the barbecue.
[30] Gregory v Comcare (1997) 72 FCR 196
After referring to the judgment of the majority in Hatzimanolis v ANI Corporation Ltd[31] (Hatzimanolis), Cooper J said:
““The judgment of the majority in Hatzimanolis did not, in my view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth of Australia v Lyon 24 ALR at 303-304). …”.[32]
[31] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611; Mason C.J., Deane, Dawson, Toohey and McHugh JJ
[32] (1997) 72 FCR 196 at 201
As a general rule:
“… The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.”[33]
[33] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611 at 483; 617 per Mason C.J., Deane, Dawson and McHugh JJ
There may be occasions, though, in which an employee was not injured in the period of time defined by those two events. The employee might, for example, have sustained the injury in an ordinary recess, such as a tea, lunch or dinner break, taken during the period between starting and completing his or her ordinary hours of work. This is illustrated by the judgment of the majority in Hatzimanolis. Their Honours referred to the case of Danvers v Commissioner for Railways (NSW)[34] (Danvers), in which an employee was found to have died in the course of his employment when his accommodation, provided by the employer and located near his work as his own home was too far away, caught fire while he was inside. They said:
“ The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day’s work has ceased lies not so much in the employer’s attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees. For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.”[35]

[34] [1969] HCA 64; (1969) 122 CLR 529; Barwick CJ, McTiernan, Kitto and Windeyer JJ; Menzies J dissenting

[35] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611 at 483; 617

In Comcare v Mather and Mitchell[36] (Mather and Mitchell), Kiefel J rejected a submission that the principles in Hatzimanolis required that an employee must be directed to a particular place or authority must be given for an identified activity before he or she could

be said to have been in the course of his or her employment. Her Honour said that:
“ The place at which or the activity undertaken at the time of the injury was not said in Hatzimanolis to have been previously expressed or identified by the employer. It happened that such an inference could be drawn there. An injury will, within the statement of principles, have occurred at a ‘particular’ place if it can be found to fall within the ambit of the employer’s encouragement or inducement which may, in its terms, leave some matters to the decision of the employee. The statement of principles read, with the preceding analysis of case law, discloses an attempt to provide a satisfactory connection between injury and employment by a temporal connection (and as to which see Inverell Shire Council v Lewis (1992) 8 NSWCCR 562) which is strengthened by connection via the employer, the ‘nexus’ of which Lockhart J spoke in Comcare v McCallum (1994) 49 FCR 199 at 204.”[37]

[36] [1995] FCA 1216; (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297
[37] [1995] FCA 1216; (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297 at [21]; 468; 303

Section 45(1) of the Defence Act 1903 provides that:
“Members of the Australian Regular Army or of the Regular Army Supplement are bound to render continuous full time military service.”

Mather and Mitchell concerned members of the Australian Army who were engaged in Kangaroo 92. Kangaroo 92 involved them in three months of simulated combat exercises in northern Australia. Only local leave was granted during the three month period. There is nothing in Kiefel J’s judgement which suggests that the fact that a person is a member of the Australian Regular Army and so bound to render continuous full time service is relevant in considering whether he or she was in the course of his or her employment. Equally, there is nothing in her judgment to suggest that the fact that a person is at the place of her employment (i.e. Broadmeadows) necessarily resolves the question whether that person was injured “in the course of … employment”. Whether or not a person is required to “render full time continuous service”, there remains the question whether there is the necessary connection between the injury and the person’s employment. That connection is a temporal connection as Kiefel J explained it.

In Comcare v PVYW[38] (PVYW), the majority explained that it had been observed in Hatzimanolis that the expression “course of employment” covered not only the actual work done by an employee but what was incidental to it. To say that something was “incidental” to another was to state a conclusion and not a test and that point had also been made in Hatzimanolis.[39] The test that the High Court had adopted in Hatzimanolis was, the majority in PVYW said, to be found in the legal justification that the Court had put forward for regarding an injury, which had occurred between periods of Mr Hatzimanolis’s actual work, being regarded as having occurred in the course of his employment. The legal justification that the Court put forward was that Mr Hatzimanolis had been induced or encouraged to take that break.[40] The majority in PVYW went on to explain:
“ 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.”[41]
[38] [2013] HCA 41; [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1; French CJ, Hayne, Crennan and Kiefel JJ; Bell and Gageler JJ dissenting
[39] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [19]; 257; 6 referring to [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611 at 476; 613
[40] Mr Hatzimanolis’s employer had arranged to take a group of its employees from Mt Newman where they worked to Wittenoom Gorge on a Sunday. The employees were not required to work on that day or on any other Sunday unless rostered to do so. Otherwise, they worked for six days each week over a three month period.
[41] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [35]-[36]; 261; 11; 10 (citations omitted)
How is that question answered? The majority in PVYW explained the process:
“… 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.
39. It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.”[42]
[42] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [38]-[39]; 262; 11; 10
There is no element of causation in this exercise but there must be a connection between the injury and the circumstance in which the injury was suffered. As the majority said in PVYW:
“… It is that circumstance which must be the subject of the employer’s inducement or encouragement.”[43]
That is to say:
“… 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.”[44]
[43] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [44]; 263; 12; 11
[44] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [60]; 269; 16; 15
The case of The Star Pty Ltd v Mitchison[45] provides a more recent application of the principles. Mr Mitchison was employed by The Star Pty Ltd (Star) as a bellboy at a hotel. Star also owned a nightclub. Before the nightclub opened for business officially, Star held an event to trial service procedures and to allow its employees to have an opportunity to inspect its facilities before it was opened to the general public. Staff of the hotel were invited to put down their names if they wished to attend and were not rostered to work that evening. Free drinks and a DJ would be provided all night. During the event, a mock fire drill was held and Mr Mitchison lost his balance and was pushed down the stairs. Star paid him workers’ compensation but the issue was whether Mr Mitchison had a right to commence common law proceedings against Star for damages. If he had suffered his injury in the course of or arising out of his employment, he could not commence those proceedings.
[45] [2017] NSWCA 149; Beazley P, McColl and Payne JJA
The New South Wales Court of Appeal decided that the trial Judge had been correct in finding that Mr Mitchison’s injury had not arisen in the course of his employment. Mr Mitchison was not employed to work in the nightclub and the invitation to put his name down to attend the event did not meet the description of an encouragement or inducement to be at the event.[46]
[46] [2017] NSWCA 149 at [73]-[76] per Payne JA with whom Beazley P and McColl JA agreed
Ms Blok referred me to the case of Mendez in support of the proposition that, in so far as journeys to work are concerned, they are not “in the course of employment”. Ms Mendez was an employee of Australia Post but was injured when a manhole cover installed by Telstra in a public street gave way under her. Handley JA, with whom Mason P and Sheppard AJA agreed, found that Ms Mendez’s injury was not sustained “in the course of her employment”. That is consistent with the principles expressed in Hatzimanolis and PMYW. Her injury was, however, taken to have arisen out of, or in the course of, her employment by virtue of the opening words of s 6(1). Those opening words did not distinguish between whether it was taken to have arisen out of, or in the course of employment. The consequence was that Ms Mendez was not prevented by s 44(1) of the SRC Act from bringing common law proceedings against the Commonwealth. If she were precluded, her injury would have had to be taken to have been sustained in the course of employment and not to have been sustained in circumstances where it was taken to have arisen out of, or in the course of, employment without distinction between the two.
In Mendez, the Court of Appeal was concerned with the particular issues that accompany the application of ss 44 and 45 of the SRC Act and the right of an employee to institute proceedings outside the SRC Act. It was not concerned precisely with the issues with which Hatzimanolis and PMYW were concerned and the Court of Appeal had no need to consider the application of the principles in the ingress and egress cases that arise in this case.
B. Injury “arising out of” employment
By way of contrast, identification of an injury that “arose out of” employment is an exercise in causation. It is an exercise requiring a causal connection between an injury and the employment or its incidents.[47] The critical question to ask in identifying whether an injury arose out of an employee’s employment was stated by Starke J in Stewart v Metropolitan Water, Sewerage and Drainage Board[48] (Stewart):
“… did it arise from a risk reasonably incident to the work which he was called upon to perform? …”[49]
[47] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 556 per Dixon J
[48] [1932] HCA 45; (1932) 48 CLR 216; Gavan Duffy CJ, Rich, Starke, Evatt and McTiernan JJ; Dixon J dissenting
[49] [1932] HCA 45; (1932) 48 CLR 216 at 228
I will not set out any of the other authorities that are concerned with when an injury arises out of employment for it is clear that Mrs Stathapolous’s fall in the car park was not related to the work she did as a Service Officer at a Service Centre.
C. The entry and exit cases
I will begin with Weaver v Tredegar Iron and Coal Co Ltd[50] (Weaver). A railway company built a railway platform to serve a railway line it owned and operated. The railway tracks ran alongside land owned by a colliery and its platform was built on land owned by the colliery. The railway company had agreed with the owner of the colliery that some of its trains would stop at the platform to allow the colliery owner’s employees to embark and disembark. Those stops were not shown in the timetable and members of the public could not gain access to the platform in order to board those trains that did stop. The colliery owner paid for its employees’ fares, which were calculated at a reduced rate, and deducted the cost from their wages. The employees could have chosen to go home by means of the main road which also ran alongside the colliery but most did not. Mr Weaver was injured when he was pushed from the railway platform by fellow employees trying to board the train.
[50] [1940] 3 All ER 157; House of Lords (Lord Atkin, Lord Wright, Lord Romer and Lord Porter; Viscount Maugham dissenting)

The majority of the House of Lords found that Mr Weaver’s injury had been sustained in the course of his employment. They expressed the underlying principles in these ways:
“… [I]t seems evident that the workman was making use of facilities which the employers had provided for leaving the place of employment … and for this purpose was upon the premises which the employers, for the purposes of the employment, had obtained for him a licence to use, and on which he had no right to be and no reason for being except by the conditions of his employment … He had not left his employment. He was about to leave the employment in the manner provided by the employers, but, until he was on the rain, the employment was not left. …”[51]
“… [A]fter a workman has finished his day’s work and started on his way home, his employment continues while he is traversing the premises on which he has been working and any private means of access thereto which he is entitled to use by reason only of his status as a workman, but that, unless engaged on some special errand for his employer, which necessitates his being there, his employment ceases when he reaches a place to which the public have a right of access, such as the public street. From that moment, he loses his identity as a workman, and becomes one of the general public. A similar principle, of course, applies to a workman on his way to work. …
…
In all cases, therefore, where a workman, on going to, or on leaving, his work, suffers an accident on the way, the first question to be determined is whether the workman was at the place where the accident occurred by virtue of his status as a workman or in virtue of his status as a member of the public. …”[52]
“… Finally, the conclusion at which I have arrived is, in my view, consistent with the line of reasoning adopted in the opinion of Lord Macmillan in Northumbrian Shipping Co Ltd v McCullum … [(1932) 147 LT 361; House of Lords], in which the other noble and learned Lords concurred, and comes directly from the words to be found at p 670:
It has been recognised time and again that the sphere of a workman’s employment is not necessarily limited to the actual place where he does his work. If in going to or coming from his work he has to use an access which is part of his employer’s premises, or which he is only entitled to traverse because he is going to or coming from his work, he is held to be on his masters’ business while he is using that access.
Nor can I see anything, either in the opinion itself or in the collocation of the words, to suggest that they are confined to a case where there is only one means of access on or off the premises. …”[53]
[51] [1940] 3 All ER 157 at 167 per Lord Atkin and see 172 per Lord Wright
[52] [1940] 3 All ER 157 at 175 per Lord Romer
[53] [1940] 3 All ER 157 at 183-184 per Lord Porter
To expand on what Lord Macmillan said in McCullum v Northumbrian Shipping Company Limited,[54] it must first be noted that the circumstances in which Mr McCullum came to be drowned were undetermined other than to conclude that he died neither by suicide or by being murdered. Mr McCullum’s duties required him to act as watchman while his ship was in port. When the ship was moored in his home port, he was permitted to go home each day and return each night to act as watchman. It was decided that he had stopped at an inn at the side of the docks for a short time. That was where he was last seen but it was also decided that he had moved from the pubic highway and then entered the private premises of the harbour. Lord MacMillan, with whom the other Lords concurred, said:
“ The seaman who on his way back to his ship has left the public highway with its risks common to all wayfarers and has entered the private premises of the harbour in which his ship lies with its special risks, to which only those who have business at the harbour are exposed, seems to me to have come within the protection of the Act, for if he sustains an accident while using this access he sustains it by reason of risks incidental to his employment, which he would not have encountered but for his employment. That is exactly the position of the deceased in the present case on the facts found by the arbitrator, and in moving your Lordships on this ground to affirm the award of compensation to the deceased’s widow I do not think that I am transgressing any principle of interpretation of the statute which is binding upon your Lordships. If in the apparently endless task of construing this remedial measure judicial pronouncements are to be found which are not in complete harmony, this is not to be wondered at, and apparent inconsistencies will often be found to have their origin in the diversity of facts. …”[55]
[54] (1932) 147 LT 361; Lords Atkin, Warrington, Tomlin, Thankerton and Macmillan
[55] (1932) 147 LT 361 at 366-367
In Learmonth v H&A Bag Company[56] (Learmonth), the issue was whether Ms Learmonth’s injury arose out of or in the course of her employment so that it was compensable under the Workers’ Compensation Act 1926 (NSW). The facts are stated in the headnote to the report of the case:
“ The respondent occupied the second floor of a building where they carried on their bag-making business. Other tenants occupied the first floor. The stairs therefrom were used by the respondents and other tenants. The applicant in making her exit from the respondent’s premises during the luncheon interval on 13^th January, 1944, fell down part of the first flight of stairs and sustained injury. She claimed compensation from the respondents in respect of her resulting incapacity for work, but they denied liability.”
[56] [1944] WCR 131; Lamond J
In Learmonth, Lamond J analysed the judgments in John Stewart and Son Ltd v Longhurst,[57] Foster v Edwin Penfold and Co Ltd Ltd.[58] Weaver v Tredegar Iron and Coal Ltd[59] and Sparey v Bath Rural.[60] He summarised the principles to be drawn from them:
“ In considering the above cases, it appears to me that the broad distinction drawn is one between a worker using a means of ingress or egress available to him only by virtue of his employment, as distinct from a means of ingress or egress which is available to the public ‘at large’ or ‘a place of which the public have a right of access such as the public street.’ It does not seem that the worker’s right would be cut down merely because as undoubtedly would be the case, a limited number of members of the public also used the same means of ingress or egress. For instance, no one could suggest that the dock in Longhurst’s case was not used by such members of the public as had business or professional relations with the Port of London Authority or Stewart and Son Ltd.
This is almost invariably the case with all means of ingress and egress which are particular to any one employer.
In the present case despite the fact that the staircase in question may be used by members of the public, viz., that limited number as desire to do business with the employers on the first and second floors and must be used also by employees of the employer on the first floor, it seems to me that this so-called common entrance stands in a definitely difference category to a portion of the ‘means of access which is open to the public at large,’ the expression used by Lord Romer in Weaver’s case (supra) and that the matter must be judged in the light of the observations of Lord MacMillan in Sparey’s [Sparey v Bath Rural District Council 24 BWCC 227] case where he says , ‘the question is whether the workman when he was injured was in the his capacity as an employee doing something referable to his employment or was in his capacity doing something independent of his employment. It is more than usually difficult to draw the line when the site of the accident is a place where the workman might be at one time in the one capacity and at another time in the other capacity.’
In my view the applicant, when she was injured, was using the staircase as a worker employed by the respondents by means of not merely a permitted, but a necessary means of egress, which was not open to the public at large, and that she was in the course of her employment.”
[57] 10 BWCC 266
[58] 27 BWCC 240
[59] 33 BWCC 227
[60] 24 BWCC 414
The case of Grech v Commonwealth of Australia[61] (Grech) was injured during her lunch break. Again, I have taken the facts from the headnote:
“ An employee of the Commonwealth of Australia worked on the mezzanine floor of a building owned by the Commonwealth. One day during her lunch hour, which commenced at 1 pm., she ate her lunch at work and then proceeded to go out to do some shopping. To reach the street she had to traverse some stairs between the mezzanine and ground floors of the building. The stairs were a right and proper means of egress for the Commonwealth’s employees situated on the mezzanine floor, and it was known to the Commonwealth that the stairs were used by its employees. When about half way down the stairs, the employee fell and suffered an injury, the time being about 1.15 pm. She made a claim for compensation under ss. 9 and 9A of the Commonwealth Employees’ Compensation Act 1930, as amended, which was rejected by the Commissioner for Commonwealth Employees’ Compensation. ...”
[61] 1 DCR (NSW) 108; Holt DCJ
Section 9A was found by Holt DCJ to be inapplicable on the basis that it applied to injuries occurring while “travelling” to and from an employee’s employment and was inappropriate to cover the case of an employee leaving her employment during a short luncheon interval between work for the purpose of shopping during that interval. Only s 9 applied and s 9(1) of the Commonwealth Employees’ Compensation Act 1930 provided:
“If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.”
After reviewing a number of authorities, Holt DCJ concluded:
“… I am of the opinion that at the time of the accident the appellant was doing something which she was reasonably expected and authorized to do in order to carry out her duties, and that her presence on the steps was reasonably connected with the particular situation which the performance of her duty to the Commonwealth had created. Her presence at the scene of the accident was a reasonable consequence of the circumstances in which she was placed through the performance of her duties. The circumstances in which she was placed through the performance of her duties was that at 1 p.m she was on the mezzanine floor with the right to stay there or to proceed by alternative routes, provided by her employer for her egress, to the street so long as she returned by 2 p.m. She took only a short time to consume her lunch and attend to some personal requirements and then proceed by that egress up to the time of the accident. I think that it was a reasonable want to descend in this way to the street and cannot be considered to be an excursion for her own purposes, even if she may have had it in mind to do some shopping after she had reached the street. At the time of the accident she was in the position in which she was as a consequence of her employment, she had not disentangled herself from it and it was within the contemplation of her employer and herself as being necessarily incidental to her employment that she should be entitled to use the steps during the lunch hour. I think also that she was on the steps by virtue of her status as an employee. Her case in principle seems indistinguishable from the maidservant referred to by Lord McMillan and Lord Romer. In Whittingham v. Commissioner of Railways (W.A) (1931), 46 C.L.R. 22, Dixon, J., at p. 29, said: ‘The sufficiency of the connexion between the employment and the thing done by the employee cannot but remain a matter of degree in which time, place and circumstances, as well as practice, must be considered together with the conditions of employment.’ I think that the appellant’s presence at the place where she was injured was in a sufficient degree connected with the actual performance of her duty. It was a locality risk, not a mere risk that anybody incurs and that locality risk was within the sphere of her employment and, in my opinion, an incident to it. …”[62]
[62] 1 DCR (NSW) 108 at 113
In M Ayling v Wende Bros[63] (Ayling), Ms Ayling was a tailoress employed by Wende Bros, which operated its business from four rooms on the second floor in the Perth CBD. There was another tenant on that floor and there were various other tenants on the other two floors of the building. The entrance to the building was located in an arcade leading from a street. In order to reach Wende Bros business premises from the building’s entrance, a person could climb a stairway. A lift was also available but was, more often than not, not operational. Fire stairs were reserved for emergency situations. While climbing the stairs at 7.40 one morning for the purpose of starting work at 7.45, Ms Ayling slipped on the stairs and damaged her right arm and elbow. Wende Bros denied liability saying that her injury had not arisen out of, or in the course of, her employment but in the course of her journey from home to work and before entering its premises.

[63] [1962] WCBD (WA) 193; N W Mews Chairman, Messrs W P Mark and R C Cole, Members.

The Workers’ Compensation Board (WA) assumed that Wende Bros’ status as a weekly tenant of the rooms meant that it had all the rights of a user. As it was a tailor, those rights would include those that would permit him to conduct that business and so give it, its employees and its invitees ingress and egress to the premises. Ms Ayling was entitled to be where she was on the stairway by virtue of her contract of employment with Wende Bros. She had a vicarious right to be there through her employer, which was the lessee of the premises she was seeking to reach. The fact that other people no doubt had similar rights through other employers who were also tenants in the building did not reduce her right to be on the stairway. It was not a place to which the public had a right of access in the way in which they had a right to have access to, for example, a public street. Ms Ayling was injured while using a stairway that she was not only permitted to use, but that she had to use and which was not open to the public at large. She was, therefore, injured in the course of her employment.
Much of the judgment of Beach J in Victorian Workcover Authority v Jones Lang Lasalle (Vic) Pty Limited[64] was concerned with issues relating to whether or not Jones Lang Lasalle Pty Limited (Jones Lang) was required to indemnify the Victorian Workcover Authority (VWA) for compensation it had paid to Ms Williams. Ms Williams had slipped on water and fallen on the floor in the foyer of the building in which she worked in Melbourne. Jones Lang was the building manager at the time. One of the issues was whether VWA had been liable to pay compensation to Ms Williams at all. There was little in the evidence about the nature and terms of her employment but Beach J decided that the question whether or not the injuries she suffered in the fall arose out of or in the course of her employment was essentially a factual question. The question fell to be decided by reasoning similar to that applied by the Court of Appeal in Foster v Edwin Penfold & Co Limited.[65] Beach J considered that case saying:
“… The facts of that case may be briefly stated as follows. The employer’s premises stood between a public highway and a wharf which was not their property. On the wharf stood a garage which was leased by them. Employees were allowed to park their cars on the private wharf. There was a private passage at the back of the employers’ premises by which access could be obtained to the wharf. On the night in question, the deceased worker ran his car against a bollard on the wharf, and the deceased fell into the river.
Slesser and Romer LJJ held that the accident arose in the course of employment. They so held, because the accident occurred while the deceased was using a permitted means of egress from his work and on a spot where he happened to be not as a member of the public, but only by virtue of his employment. The ownership or control of the spot where the accident occurred was held to be immaterial.
While in the present case there are arguments both ways, I accept that Ms Williams’ injuries occurred while she was using a permitted (if not expected) means of gaining access to her work area. Further, Ms Williams was in the foyer of the building, not as a member of the public, but only by virtue of her employment. Additionally, she was proceeding in the building directly to her work area. Accordingly, I am satisfied that Ms Williams’ injuries arose out of or in the course of her employment within the meaning of s 82 of the Act. …”[66]
[64] [2012] VSC 412
[65] 27 BWCC 240
[66] [2012] VSC 412 at [73]-[75]
When regard is had to the majority judgment in PVYW, these cases can be seen as illustrations of the principles that were enunciated in that case. I have set them out at length above but I refer particularly to the question that the majority puts forward as the essential question that must be asked and answered. The question is “How was the injury brought about”? The question will be answered by reference to the employee’s being in a particular place or carrying on a particular activity. Having identified which is relevant, the next question becomes “Did the employer induce or encourage the employee to be at that place/undertaking that activity?” The ingress and egress cases are illustrations of circumstances in which the employer was found to have induced or encouraged the employee to be in a particular place as part of his or her journey to engage in the work for which he or she is employed to undertake. The consequence is that the injury has been found to have been suffered in the course of the employee’s employment.
D. Sections 6(1)(d) and 6(1C)
Like ss 6(1)(a) to (c) and (e) to (i), s 6(1)(d) extends 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 …”. It does this by preceding those paragraphs with the statement that those paragraphs provide for circumstances in which an injury shall be treated for the purposes of the SRC as having arisen out, of or in the course of, employment, “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 …” (emphasis added).
D.1 “Employment”
The SRC Act uses the word “employment” in some instances and “place of work” in others. The word “employment” is not defined. In general terms, the word “employee” is defined by reference to a person’s being “employed”.[67] The word is used in that way in ordinary discourse: “… the act of employing or the state of being employed. …”.[68] In the context in which the word “employment” is used in the SRC Act, it is used to denote the state of being employed but it means more than that in the context of workers’ compensation legislation. Considering it in the context of s 9A of the Workers’ Compensation Act 1987 (NSW), Mason P said:
“It is common ground between the parties and well established by earlier authority that, when s 9A(1) speaks of ‘the employment concerned’ being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment (see Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632-3, 641). In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to the ‘injury’ as defined in s4.”[69]
[67] SRC Act; s 4(1) and 5
[68] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[69] Mercer v ANZ Banking Group Limited [2000] NSWCA 138; (2000) 48 NSWLR 740 at [13]; 745 per Mason P with whom Meagher and Beazley agreed

Therefore, the enquiry whether an injury arose out of or in the course of employment is an enquiry whether it arose out of what it is that the employee did in the employment. It is not to be confined to an identification of the essential features or essential incidents to the employment.[70] As Windeyer expressed it in Federal Broom Co Pty Ltd v Semlitch:
“ I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. …”[71]
[70] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632-3 per Kitto J
[71] [1964] HCA 34; (1964) 110 CLR 626 at 641
D.2 “Place of work”
The expression “place of work” is defined and I have set it out at [25] above. It includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment. The word “place” may be used to describe a wide variety of venues or areas e.g. “… a building, room, piece of ground, etc, particularly one assigned to some purpose ¨ place of business ¨ place of worship. …”[72] Identifying whether a particular place is a place at which an employee is required to attend for the purpose of carrying out the duties of his or her employment becomes a question of fact in each case.
[72] Chambers
D.3 Reconciling sections 6(1) and 6(1C)
To this point, my analysis of the authorities would seem to me to be consistent with that made by Murphy J in Bowden. The case that I must consider takes me, however, beyond the issue that he considered i.e. whether Mr Bowden’s injury arose out of, or in the course of, his employment. The evidence that I have raises the issue whether Mr Frost’s injury comes within s 6(1) but is excluded from being considered to have arisen out of, or in the course of his employment, by s 6(1C).
The starting point is s 6(1)(d). At the same time that it was added to the SRC Act by the 2007 Amendment Act, s 6(1)(b)(ii) was repealed. Section 6(b)(ii) had expressly provided that an injury that was sustained while an employee was travelling between his or her place of residence and place of work, other than during an ordinary recess in employment, was to be treated as having arisen out of, or in the course of, that employment. It is apparent from the principles established in cases such as Hatzimanolis and PVYW that, without s 6(1)(b)(ii), an injury that was sustained while an employee was travelling between his or her place of residence and place of work would not be regarded as having arisen out of, or in the course of, his or her employment except in very limited circumstances as I have explained above. Those limited circumstances apply by virtue of the ordinary meaning of the expression “arising out of, or in the course of,” employment.

Section 6(1)(b)(ii) expressly extended what was to be taken to be included in the ordinary meaning of the expression. By repealing s 6(1)(b)(ii) and inserting s 6(1)(d), Parliament has replaced one express extension beyond what would ordinarily come within the expression “arising out of, or in the course of,” employment with another. That other is an injury that is sustained while the employee was, at the direction or request of the Commonwealth or of a licensee, travelling for the purpose of that employment. In replacing one extension with another, Parliament has expressly excluded from the replacement extension provided for in s 6(1)(d), any travel between the employee’s residence and usual place of work. It has achieved that by providing in s 6(1C) that any such travel “… is taken not to be at the direction or request of the Commonwealth or a licensee.” Section 6(1C) is drafted in terms that apply solely to the extension in s 6(1)(d) and do not affect the ordinary meaning of the expression “arising out of, or in the course of,” employment.
The careful language that Parliament has used shows that it has not altered the exposition of the expression “arising out of, or in the course of, employment” given by the High Court in cases such as Hatzimanolis and PVYW. That expression is used in the opening words to s 6(1). The paragraphs that follow expressly 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 practical terms, that would mean, for example, that an injury suffered by an employee travelling from his or her place of residence to his or her place of work on a public road or footpath, would not be compensable per se. What it would do is to leave open liability to be determined by reference to the principles established by cases such as Hatzimanolis and PVYW . Those principles apply when an employee does not seek to, or is unable to, bring his or her circumstances within one of the specific circumstances described in ss 6(1)(a) to (i) but must rely on the introductory words to s 6(1), which are not limited by the specific circumstances that follow.

This interpretation is consistent with the words that have been used in light of the object and purpose of the SRC Act. Its Long Title states that it is:
“An Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers’ compensation for those employees and certain other persons, and for related purposes.”
D.4 What of the Explanatory Memorandum?
In its submissions, Comcare relied on the Explanatory Memorandum as support for the proposition that the principal amendments removed claims for non work-related journeys and recess breaks where the employer has no control over the activities of the employee. An Explanatory Memorandum may be used in various ways. Before the enactment of s 15AB(1) of the Acts Interpretation Act 1901 (AI Act), the High Court had, on occasions, thought that an Explanatory Memorandum could be used to identify the mischief that Parliament intended to address by enacting the legislation.[73] That was not always the view, though, and differently constituted High Courts thought that reference could never be made to the Explanatory Memorandum.[74]
[73] See, for example, Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200; Dixon CJ, McTiernan, Webb, Fullagar and Taylor JJ
[74] See, for example, Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd [1977] HCA 38; 14 ALR 485; (1977) 139 CLR 449; Barwick CJ, Gibbs, Stephen, Mason and Murphy JJ
Section 15AB of the AI Act was added in 1984. Section 15AB(1) of the Acts Interpretation Act 1901 (AI Act) provides:
“Subject to subsection (3), in the interpretation of a provision of an Act, if any any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.”[75]
[75] AI Act; s 15AB(1)
The material to which reference may be made is not limited by s 15AB(2) but that provision stipulates material that may be considered under s 15AB(1). It includes an Explanatory Memorandum.[76] The qualification found in s 15AB(3) is:
“In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning of conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.”
[76] AI Act; s 15AB(2)(e)
It is apparent from the terms of s 15AB itself that material that is extrinsic to, or beyond, the words that Parliament has enacted may have a role to play but it is equally clear that it may not. Whether it does have a role is a question answered only after the words of the provision are considered in the context of the relevant enactment in which they are used. Material such as an Explanatory Memorandum has no relevance at that stage for material of that sort does not determine the meaning of an enactment. When all is said and done, only the words of the enactment and the context in which they are used can determine their meaning. Extrinsic material may be used under s 15AB of the AI Act for the particular purposes set out in s 15AB(1). By their very nature, those purposes confirm that the starting point for the interpretation of the words of an enactment are the words themselves. It is, for example, impossible to know if a provision is ambiguous or obscure as provided for in s 15AB(1)(b)(i) if the words of that provision have not first been picked over and examined from every angle in the context of the enactment in which they appear. Extrinsic material may be used as an aid to statutory interpretation in certain circumstances but it may not be used to usurp the task of statutory interpretation so that whatever the Executive arm of government states in an Explanatory Memorandum[77] is the intended meaning to be given to the enactment becomes the meaning ascribed to Parliament.
[77] An Explanatory Memorandum to a Bill is circulated by authority of the Minister with responsibility for it under the Administrative Arrangements Order or by the Minister representing that Minister in the other place be it the House of Representatives or the Senate.
In this instance, I do not consider the meaning of s 6(1) or s 6(1C) to be obscure or that meaning to lead to a result that is manifestly absurd or unreasonable within the meaning of s 15AB(1)(b) of the AI Act. In so far as s 15AB(1)(b) is concerned, the ordinary meaning conveyed by the text of those provisions seems clear taking into account the context in which they appear in the SRC Act and the purpose and object underlying the Act. They have not gone so far as to remove claims for non work-related journeys and recess breaks where the employee has no control over the activities of the employee. What they have done, is to preserve the ordinary meaning of the expression “arose out of, or in the course of, employment” and alter the specific circumstances in which injuries will be treated as having been sustained in that way. The words of qualification and exclusion found in s 6(1C) and relied on to exclude non-work related journeys qualify only the operation of s 6(1)(d). They do not qualify the opening words to s 6(1).
This would seem to be an occasion on which Parliament has enacted amendment that do not have the outcome that was intended by those who prepared the Explanatory Memorandum and the draft Bill for the Minister’s and then Cabinet’s consideration. That is unfortunate for the argument put forward on behalf of Comcare but, in a situation in which the words used by Parliament are so clear, I am bound by them. I have explained this further in my reasons for decision in Re Ford and Comcare.[78] I adopt my reasons in that case as part of my reasons in this.
[78] Reasons for decision in Re Ford and Comcare, File No. 2016/5154 at [88]-[96]
Previous Tribunal authorities
I was referred to several Tribunal authorities and I have set them out at [14] above. Beginning with Perera, I note that Deputy President Constance began by stating that Mr Perera was injured at the entrance to the office building in which he works as an employee of the Australian Bureau of Statistics. He claimed compensation but:
“Comcare denied liability to compensate Mr Perera on the basis that at the time he was injured he was travelling between his place of residence and his place of work. Since the amendments to the Act made in 2007, injuries suffered in these circumstances are not compensable.”[79]
[79] [2009] AATA 499 at [2]
The Tribunal stated that the only issue for determination was whether Mr Perera was at his “place of work” at the time he was injured. That followed from a reading of s 6(1)(b).[80] I respectfully agree that this was one issue that needed to be considered. For the reasons I have given above, though, I respectfully disagree that all injuries sustained while travelling between an employee’s place of residence and place of work are not compensable. Sections 6(1)(d) and (1C) have not, I respectfully suggest, achieved that outcome and they have not limited the ordinary meaning to be given to the opening words of s 6(1).
[80] [2009] AATA 499 at [7] and [8]
Senior Member Creyke took a similar view in Green, McKenzie and Hughes. Taking McKenzie as an example, she stated:
“ It is agreed that the changes to the Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) were intended to ‘remove claims for non work-related journeys and recess breaks where the employer has not control over the activities of the employee’. …”
The Foot Note to this passage reads: Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) I, xiii.” Again, I would respectfully disagree with this statement. It accepts what is said in the Explanatory Memorandum without reference, in particular, to s 6(1)(b) and to the way in which ss 6(1)(d) and (1C) are drafted. Section 6(1C) expressly provides that it is “For the purposes of paragraph (1)(d)” that travel between an employee’s place of residence and place of work is not to be taken at the direction or request of the Commonwealth or a licensee. “Direction or request of the Commonwealth” is the wording of s 6(1)(d) and the effect of s 6(1C) is to ensure that an employer’s or licensee’s requirement that an employee attend his or her usual place of work cannot be regarded as a direction or request to travel for the purpose of employment. In that way, an employee’s usual journey from place of residence to place of work is not compensable within the meaning of s 6(1)(d). It must be remembered, however, that s 6(1)(d) is one of the ten paragraphs extending the ordinary meaning of the expression “arising out of, or in the course of, … employment” used in the opening words of s 6(1). A qualification to one of those express extensions does not qualify the opening words.

The parties also agreed in Barnard that, if Ms Barnard’s fall occurred at her “place of work” within the meaning of s 6(1)(b), she was entitled to compensation under the SRC Act. They also agreed that if her “… fall occurred whilst she was travelling between her ‘place of work’ and her residence, she is not entitled to compensation by reason of s 6(1C) of the Act.”[81] There is no reference to the reasoning behind this statement of the law. The case was decided on the basis of whether Ms Barnard sustained her injury at her “place of work”.
[81] [2008] AATA 507 at [7]
In Sintiris, Miss Shanahan was concerned with s 6(1)(c) of the SRC Act. Ms Sintiris was injured when she tripped on a worn or cracked concrete paver and twisted her knee. She tripped as she approached steps leading to the entrance to her workplace after smoking a cigarette in a designated smoking area during her afternoon 15 minute break. Miss Shanahan found that break to be “an ordinary recess” in Ms Sintiris’s employment. She also found that Ms Sintiris’s presence in the area where she fell was both at the direction and within the contemplation of her employer, Telstra Corporation. Therefore, her circumstances came within s 6(1)(c) and Miss Shanahan had no need to consider whether the injury also came within the ordinary meaning of the words “arose out of, or in the course of, … [an employee’s] employment”.
Has Mrs Stathopoulos sustained an injury arising out of, or in the course of, her employment?
I have looked first to ss 6(1)(a) to (i) to determine whether Mrs Stathopoulos’ circumstances come within them. If they do, there is no need to consider whether they come within the opening words of s 6(1).
Beginning with s 6(1)(b), Mrs Stathopoulos’s circumstances do not fall within its terms. She was clearly on her way to start her working day at the Service Office. She was not yet at her place of work for she did not carry out any of her duties as a Service Officer in the Car Park. Quite apart from that, Mrs Stathopoulos had not yet logged on her attendance and her hours of work had not yet commenced. Her absence from her workplace overnight was not an ordinary recess in her employment.
For the purposes of s 6(1)(d), Mrs Stathopoulos was not travelling for the purpose of her employment at the direction or request of DHS. Rather, she was travelling because she was required by the terms of her employment to attend her place of work at certain hours. Apart from being the means by which she could be in the place where she could do what she was required to do in the course of her employment, her travel had nothing to do with her employment. Her travel is, in any event, excluded from the scope of s 6(1)(d) by s 6(1C) because it was travel between her place of residence and place of work. For the reasons I have given in the previous paragraph, the Car Park was not her place of work.
That brings me to the general opening words of s 6(1) and the ingress and egress cases. Mrs Stathopoulos was injured because she fell in the Car Park and not because of any activity or task that she was undertaking on behalf of DHS. Was she in the Car Park when she fell for reasons incidental to her employment? If she was, then she was injured in the course of her employment. In some of the authorities, the question would be framed in terms of whether DHS induced or encouraged her to be in the Car Park at that time. At least in the context of this case, it seems to me that to answer that question is to answer the question raised by s 6(1) in its entirety. What part DHS played in her being in the Car Park at that time can only be one factor in the factual matrix. That is so whether its actions are described as inducement or encouragement. Whether or not DHS had control over the Car Park or that area in which Mrs Stathopoulos fell may be another factor but, again, it is not determinative. The authorities show that an injury will be regarded as being sustained in the course of employment even when the employer does not necessarily have control over the area. The cases of McCullum v Northumbrian Shipping Company Ltd and M Ayling v Wende Bros are two earlier examples of cases in which an injury was found to have occurred in the course of an employee’s employment. Victorian Workcover Authority v Jones Lang Lasalle (Vic) Pty Limited is a much more recent example.
In this case, DHS was permitted the use of only 20 Car Parking Bays but its employees used all 48 that existed in the Car Park. Whether the Landlord knew that was the case is not apparent from the evidence but what is clear is that the Landlord did nothing to assert its rights to use the 28 Car Parking Bays that were not the subject of the Lease it had entered with DHS. DHS did not pay for the additional 28 Car Parking Bays and its employees used them. Whether the Car Parking Bays were among the 20 that were the subject of the Lease or among the 28 that were not, the employees, I find, used them with the tacit permission of DHS. That tacit permission is found in the roster that the leadership team of the Service Centre worked out so that the Car Parking Bays would be allocated equitably among the various teams located on the Premises. It is also found in the evidence of Ms Sandhu who said that, had the Landlord wanted to exercise its rights, she would have given DHS staff immediate notice that they were not to use those Car Parking Bays.

DHS took responsibility upon itself for the management of those Car Parking Bays and it took responsibility beyond the Car Parking Bays themselves. On the basis of the evidence of Ms Sandhu, I find that a couple of employees had remote controls to the Car Park and that DHS had regarded it to be best practice that the gates to the Car Park be closed between 10.00 am and 3.00pm. That is evidence supported by Mrs Stathopoulos. My finding is also supported by the evidence of Mr Tie, who is a DHS Corporate Support Officer for the Premises. His evidence was to the effect that “… we have 2 cameras down there but unfortunately neither covers the parking spot in question” (emphasis added). It was not suggested in the evidence that the “we” in that statement referred to anyone other than DHS.

From the pictures of the Car Park in the T documents, any person could walk into the Car Park but, given the practice of shutting the gates, the absence of any other tenants in the building and the roster for DHS employees to use all of the Car Parking Bays, I find that the presence of persons other than DHS employees was not encouraged. Mrs Stathopoulos was in the Car Park and in a Car Parking Bay that DHS had the use of under the Lease because DHS permitted her to be there. Had she not been rostered to use that Car Parking Bay, she would not have been there. In other words, Mrs Stathopoulos was only in the Car Park because she was an employee of DHS and permitted by DHS to use one of the car parks in the Car Park. Therefore, I have concluded that her being in the Car Park was incidental to her employment. Therefore, I have decided that she sustained her injury in the course of her employment.

DECISION

For the reasons I have given, I set aside Comcare’s reviewable decision made on 3 January 2017 and substitute a decision that Mrs Stathopolous’s injury was sustained in the course of her employment with DHS within the meaning of s 6(1) of the SRC Act.

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

...............[sgd].........................................................
Associate
Dated: 21 March 2018

Heard:

24 October 2017

Applicant:

Counsel for the Respondent:

Self represented

Ms Natalie Blok

Solicitor for the Respondent:

Mr Andrew Vas
Comcare