Telstra Corporation Ltd v Bowden

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FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Bowden [2012] FCA 576

Citation: Telstra Corporation Limited v Bowden [2012] FCA 576
Appeal from: Bowden v Telstra Corporation Limited [2011] AATA 320
Parties: TELSTRA CORPORATION LIMITED v KANE BOWDEN
File number: VID 582 of 2011
Judge: MURPHY J
Date of judgment: 4 June 2012
Catchwords: WORKERS’ COMPENSATION –– accident “arising out of” employment – necessary causal connection –  scope of employment
ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – question of law – workers’ compensation claim – whether tribunal failed to apply the correct test as to “arising out of employment”
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

           Commonwealth Employees Compensation Act 1930 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(10A), 5A(1), 5A(1)(c), 6(1), 6(1C), 6(1)(d), 14, 14(1),

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

Cases cited: Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324
Brittingham v Williams [1932] VLR 237
Brooker v Thomas Borthwick and Sons (Australasia) Ltd [1933] AC 669
Cook v Owners of S.S. Montreal (1913) 6 B.W.C.C. 220
Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535
Dover Navigation Co Ltd v Isabella Craig [1940] AC 190
Foster v Penfold Ltd (1934) 27 B.W.C.C. 240
Gilkinson v Repartiration Commission [2008] FCA 1441
Goward v The Commonwealth (1957) 97 CLR 355
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Kavanagh v The Commonwealth (1960) 103 CLR 547
Lawrence v George Matthews (1924), Ltd [1929] 1 KB 1
Local Government Association (City of Salisbury) v May (1996) 67 SASR 353
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29
Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711
Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Northumbrian Shipping Co Ltd v McCullum (1932) 48 TLR 568
Nunan v Cockatoo Island Docks and Engineering Co Limited (1941) 41 SR (NSW) 119
O’Brien v Commonwealth (1967) 117 CLR 66
Pearson v The Freemantle Harbour Trust (1929) 42 CLR 320
PVYW v Comcare (No 2) [2012] FCA 395
Repatriation Commission v Law (1980) 47 FLR 57
Repatriation Commission v Law (1981) 147 CLR 635
Roncevich v Repatriation Commission (2005) 222 CLR 115
Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504
South Maitland Railways Pty Ltd v James (1943) 67 CLR 496
Stewart & Son (1912) Ltd v Longhurst [1917] AC 249
Stewart v Metropolitan Water, Sewerage and Drainage Board (1932) 48 CLR 216
St Helens Colliery v Hewitson [1924] AC 59
Tarry v Warringah Shire Council [1974] WCR 1
Thom v Sinclair 1917 AC 127
Upton v Great Central Railway Co [1924] AC 302
Weaver v Tredegar Iron Co Limited [1940] AC 955
Webber v Wansborough Paper Co [1915] AC 51
Weston v Great Boulder Gold…
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Details
Case
[2012] FCA 576
Decision Date

CaseChat Overview and Summary

In the matter of Telstra Corporation Ltd v Bowden, the dispute revolves around a claim for workers' compensation by Mr. Bowden, who had been employed by Telstra as a technical specialist. The core issue pertains to whether Mr. Bowden's injury, which was an aggravation of a pre-existing shoulder condition, arose out of his employment with Telstra, thereby qualifying him for compensation under the relevant legislative framework. The case was initially dismissed by Telstra but was later appealed to the Administrative Appeals Tribunal, which upheld Mr. Bowden’s claim. Telstra then appealed the Tribunal's decision to the court.

The primary legal issue the court had to address was whether the Administrative Appeals Tribunal applied the correct legal test in determining if Mr. Bowden's injury arose out of his employment. Telstra argued that the Tribunal should have considered whether Mr. Bowden was required or expected to move the industrial waste bin as part of his employment duties, citing the High Court's decision in Roncevich v Repatriation Commission. The court had to determine whether the test articulated in Roncevich necessitated a strict interpretation that limited the scope of compensable injuries to those arising directly from employment duties.

The court dismissed Telstra's appeal, holding that the Tribunal correctly assessed the causal connection between Mr. Bowden's injury and his employment. The court clarified that the test for determining if an injury arises out of employment does not demand an absolute requirement that the injury be directly linked to employment duties, but rather requires a sufficient causal connection that is not fanciful or tenuous. The court emphasized that the test of causation under workers' compensation legislation should be approached with common sense, aligning with broader legal principles of causation in tort law.

In light of the findings, the court ordered that the appeal be dismissed. The court also mandated that within seven days, the parties submit draft minutes of consent orders in relation to costs or their respective submissions on the issue of costs, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

2. Within 7 days the parties file draft minutes of consent orders in relation to costs or their submissions as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out I dismiss the appeal. THE FACTS Mr Bowden’s left shoulder injury is long term, having first occurred in 1995 while he was employed in the Australian Army. The injury led to his discharge from the army on medical grounds in September 2007. The following month he commenced more apparently sedentary employment with Telstra as a technical specialist. He worked at premises leased by Telstra at 234 St Kilda Road, Melbourne. About two months after he commenced employment, Mr Bowden’s partner, Ms Ayris, who is also employed by Telstra but as a Team Manager, was transferred to the same premises. Telstra allocated exclusive use of a car parking space in the basement car park of the St Kilda Road premises to Ms Ayris and she was provided with a car park access pass. There was an agreement between Ms Ayris and Telstra in relation to the car space which entitled her to permit Mr Bowden to park in that space, even if he was not accompanying Ms Ayris. Ms Ayris agreed to Mr Bowden using the car parking space including when she did not accompany him and she provided him with the car park access pass to do so. Mr Bowden and Ms Ayris usually travelled to work together in Ms Ayris’ vehicle and he usually drove. To enter the car park at the premises Mr Bowden was required to use Ms Ayris’ car park access pass. He did this when driving Ms Ayris and also when entering the car park unaccompanied by her. Having parked the car Mr Bowden would then take the lift to the third floor of the building where his work station was located. There was a car parking space license agreement in place between Telstra and the building owner. The building owner granted Telstra and those authorised by Telstra the use of the designated space. Under this agreement it was for the building owner to keep and maintain in “reasonable condition the surface and markings of each space and the access to such space…” On 29 July 2009 Mr Bowden drove Ms Ayris’ vehicle to work at Telstra’s St Kilda Road premises unaccompanied by Ms Ayris. He arrived at 6.45 am. His starting time was 7.00 am. Mr Bowden entered the car park and as he approached the parking space allocated for Ms Ayris’ use he saw that it was occupied by a large wheeled industrial waste bin. He got out of the car, checked the waste bin to see that it was empty, and then tried to push the waste bin out of the car space. As he pushed it the bin swerved away from his intended direction and he tried to redirect it. He felt a sudden and severe left shoulder pain. The Tribunal found that:(a)Mr Bowden was entitled to park Ms Ayris’ vehicle in the parking space occupied by the bin;(b)as the bin was occupying a parking space let to Telstra, it, or someone on its behalf, was entitled to remove the bin from the area it occupied; and(c)at the time he was injured Mr Bowden was moving the bin to enable him to park the vehicle he was driving for the purpose of attending to perform the duties of his employment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Bowden claimed workers compensation for his injury pursuant to the Act. His claim was rejected by Telstra and he appealed to the Tribunal. The Tribunal decision On 13 May 2011 the Tribunal found, after hearing medical evidence, that on 29 July 2009 Mr Bowden suffered an aggravation of his pre-existing shoulder injury when he pushed the industrial waste bin. It then fell to be determined whether the injury fell within s 5A(1)(c) as an aggravation of a pre-existing injury that “arose out of or in the course of that employment”. The Tribunal correctly considered that, for the injury to have arisen out of employment, a sufficient causal connection must exist between the injury suffered by Mr Bowden and his employment. On the facts found by it, the Tribunal determined that there was such a connection and that the injury arose out of his employment with Telstra. Having decided that Mr Bowden’s injury arose out of his employment, the Tribunal considered it unnecessary to also decide whether the injury arose in the course of his employment. The appeal Telstra now appeals to this Court. At the centre of the appeal is the question as to the test for causal connection required if an injury is to arise out of employment within the meaning of the Act and ground an entitlement to workers compensation. The Tribunal’s findings as to the circumstances of the injury, and its decision as to Mr Bowden’s total incapacity for work as a result, are not challenged. Telstra argues that the Tribunal was required to consider whether moving the waste bin was something that Mr Bowden was required or expected to do to carry out the actual duties of his employment. It relies on a passage in Roncevich v Repatriation Commission (2005) 222 CLR 115 (“Roncevich”) for this contention. I do not accept that the High Court intended that the test expressed in Roncevich be as strict or absolute in its application as Telstra contends. A close consideration of Roncevich confirms that the test described informs rather than excludes a broad consideration of the causal connection required by the words “arising out of employment”. A review of the cases shows that the appellate courts have long recognised that a sufficient causal connection between injury and employment may be found in circumstances where no strict or absolute requirement is imposed that the injury be suffered when the employee is doing something that he was required or expected to do to carry out his duties. For the reasons set out I dismiss the appeal. THE FACTS Mr Bowden’s left shoulder injury is long term, having first occurred in 1995 while he was employed in the Australian Army. The injury led to his discharge from the army on medical grounds in September 2007. The following month he commenced more apparently sedentary employment with Telstra as a technical specialist. He worked at premises leased by Telstra at 234 St Kilda Road, Melbourne. About two months after he commenced employment, Mr Bowden’s partner, Ms Ayris, who is also employed by Telstra but as a Team Manager, was transferred to the same premises. Telstra allocated exclusive use of a car parking space in the basement car park of the St Kilda Road premises to Ms Ayris and she was provided with a car park access pass. There was an agreement between Ms Ayris and Telstra in relation to the car space which entitled her to permit Mr Bowden to park in that space, even if he was not accompanying Ms Ayris. Ms Ayris agreed to Mr Bowden using the car parking space including when she did not accompany him and she provided him with the car park access pass to do so.

Ratio Decidendi

Legal Principle Established

The Tribunal’s decision only dealt with the “arising out of” employment limb of subs 5A(1)(c) and no question of law is raised regarding the “course of employment” limb of the test. CONSIDERATION Question 1 - The test as to whether an injury arises out of employment The words “arising out of employment” in subs 5A(1)(c) have their origin as part of the phrase “injury by accident arising out of and in the course of employment” in early workers’ compensation legislation in England and Australia. This phrase imposed two conditions before an injury could be compensable under the legislation. Because of the double condition the old authorities require both a temporal connection to employment through the words “in the course of” employment, and a causal connection through the words “arising out of” employment: see for example Dover Navigation Co Ltd v Isabella Craig [1940] AC 190 (“Dover Navigation”) at 199 per Lord Wright. The conjunctive “and” was removed and replaced by the disjunctive “or” in an amendment in 1948 to the Commonwealth Employees Compensation Act 1930 (Cth) (see the Commonwealth Employees’ Compensation Act 1948 – No 61 of 1948) which is the predecessor to the Act in this case. Since this amendment, for an injury to be compensable it has only been necessary for an employee to establish either that the injury arose out of employment or that it arose in the course of employment. Although only the “arising out of” employment limb of the double condition test is directly relevant in this case, the old authorities on the double condition test remain useful for the light they throw on the tests needed to meet the “arising out of” limb considered on its own. They are also useful in the guidance they provide as to the meaning of “employment” in the phrase “arising out of employment”. That the phrase “arising out of employment” requires a causal connection between the injury and employment is common ground. It is important to remember that the test of causation is one of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. In Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) noted: … causation in tort does not differ from causation under the workers compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation. The judgment of Mason JA was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236. In a passage approved by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 (“Law”) per Aickin J at 647-648, with whom Gibbs, Stephen and Mason JJ agreed, the Full Court in Repatriation Commission v Law (1980) 47 FLR 57 said at 68:It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.…The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.What is required for an injury to arise out of employment is a causal connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous.