The University of Melbourne v Banyule City Council
[2012] VCC 602
•16 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-03169
| THE UNIVERSITY OF MELBOURNE | Plaintiff |
| v | |
| BANYULE CITY COUNCIL | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 May 2012 | |
DATE OF JUDGMENT: | 16 May 2012 | |
CASE MAY BE CITED AS: | The University of Melbourne v Banyule City Council | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 602 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Preliminary questions to be determined pursuant to Rule 47.04 of the County Court Rules – claim by employer for indemnity in respect of benefits paid – whether injury suffered in the course of employment – meaning of “compensation paid or payable under the Act”.
LEGISLATION CITED: Accident Compensation Act 1985, s.138.
CASES CITED: Reid Stockfeeds Pty Ltd v Lindhe [2008] VSC 304; Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281; Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; Victorian WorkCover Authority v Michaels [2009] VSCA 261; O’Brien v Bain [1975] 1 NSWLR 373; Bain v O’Brien [1976] 135 CLR 158.
JUDGMENT: Question 1 answered in the affirmative. Question 2 answered in the negative.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M F Fleming SC and Ms M Tsikaris | Thomsons Lawyers |
| For the Defendant | Mr R P Gorton QC and Mr A T Strahan | Minter Ellison |
HIS HONOUR:
1 In November 2003, Barbara Butler was employed by the University of Melbourne (“the University”) as a senior administrative assistant in the Civil and Environmental Engineering Department. Her duties, amongst other things, included the coordination of seminars and conferences for that department.
2 On 27 November 2003, she had coordinated an annual conference for the Australian Earthquake Engineering Society at the University. There was a dinner that night, incorporated into the conference program, which was held at a venue in Sunbury, some distance from suburban Melbourne. Delegates at the conference were transported by a bus from the University to the venue. Ms Butler, as coordinator, accompanied the delegates.
3 At the conclusion of the dinner, delegates and Ms Butler were transported by bus from the venue back to a location near the Law School at the University. They left the venue at approximately 11.00 pm, and I infer that they arrived back at the University at approximately midnight. Two of Ms Butler’s colleagues drove her to a taxi rank near to The Royal Women’s Hospital, from where she obtained a taxi to her home at View Bank.
4 Soon after alighting from the taxi outside her home, Ms Butler fell and suffered injuries. I shall refer more fully to the circumstances of the injuries later in these reasons.
5 Ms Butler submitted a claim to the University for WorkCover benefits in respect of those injuries. That claim was accepted. The University has paid various amounts by way of weekly payments and medical and like expenses pursuant to that claim.
6 Pursuant to s.138 of the Accident Compensation Act 1985 (“the Act”), the University seeks an indemnity from the defendant (“Banyule”) in respect of benefits paid by it under the Act to or on behalf of Ms Butler in relation to her claim. In short, it alleges that Ms Butler’s injury was caused by or contributed to by Banyule’s negligence in its maintenance of the nature strip outside her home. The defendant, on a number of grounds, denies that it is liable to indemnify the University in respect of such benefits.
7 Included in the matters pleaded in its Amended Defence, Banyule denies that, at the time Ms Butler was injured, she was acting in the course of her employment or that her injury arose out of her employment.[1] It follows, it submits, that the University was not required or obliged to pay WorkCover benefits under the Act to Ms Butler in respect of her injuries and is not entitled to be indemnified in respect of such payments.
[1]paragraph 4 of the defendant’s Amended Defence
8 The defendant has pleaded other defences to the claim. For instance, it has pleaded that Ms Butler’s injury was not a consequence of any negligence on its part. Such other defences pleaded are not relevant to the questions before this Court at this time.
9 On 16 September 2011, another Judge of this Court ordered:
“1That the following questions be determined as preliminary points pursuant to Rule 47.04 of the County Court Rules:
(a)On the facts available, did the worker, Barbara Butler, suffer injury arising out of or in the course of her employment with the plaintiff?
(b)If Ms Butler did not suffer injury arising out of or in the course of her employment with the plaintiff, are the payments made by the plaintiff to her or for her benefit as set out in the section 239A certificate payments of compensation that fall within and enliven section 138 of the Accident Compensation Act 1985?”
10 Although the expression “the facts available” was not clarified by the Court in the Order, the parties agreed that the term should be interpreted as meaning the facts as disclosed in the documents and statements included in the plaintiff’s Court Book provided to the Court,[2] comprising:
[2]Exhibit A
(a) A statement by Ms Butler dated 22 March 2004;[3]
[3]Court Book (“CB”) 54-57
(b) A WorkCover worker’s claim form signed by Ms Butler on 12 December 2003;[4]
[4]CB 58-60
(c) A statement by Christine Mary Deppeler dated 22 March 2004;[5]
(d) A list of payments made by the University to or on behalf of Ms Butler in respect of her injuries to date.[6]
[5]CB 67-69
[6]CB 1-9
11 I was advised by counsel for both parties that determination of the two questions was to be a final determination of those issues. In other words, it would not be open to either party to seek to re-open these issues even if additional evidence became available.
12 Section 138 of the Act provides as follows:
“(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2) ...
(3)The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of–
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula ... .”
13 The evidence put forward by the parties established the following:
(a)At all material times, Ms Butler was employed by the University;
(b)Ms Butler was employed as a senior administrative assistant in the Civil and Environmental Engineering Department and had been for at least five years before November 2003;
(c)Amongst other things, Ms Butler was responsible for coordinating seminars and conferences for that department;
(d)On 27 and 28 November 2003, an annual conference for the Australian Earthquake Engineering Society was held at the Melbourne University Law School, at the Melbourne campus of the University. About seventy persons participated in that conference. Ms Butler coordinated the conference;
(e)Included in the conference program was a dinner for delegates held at Emu Bottom Homestead in Sunbury on the night of 27 November 2003. Ms Butler, as coordinator of the conference, attended;
(f)Attendees were picked up by a bus from the Melbourne University Law School at the conclusion of the day’s proceedings and transported to Emu Bottom, arriving at about 6.50 pm. The dinner concluded shortly after 11.00 pm, and the attendees, including Ms Butler, returned by bus to the vicinity of the Law School at the University;
(g)During the course of transport to and from Emu Bottom by bus, Ms Butler had in her handbag a number of documents which related to the conference which included her list of delegates, cheque book, receipts et cetera. There was also an envelope with associated documents in it;
(h)Upon arrival at the vicinity of the University Law School, two of Ms Butler’s colleagues drove her to The Royal Women’s Hospital where there is a taxicab rank located. She took a taxi from there to her home at View Bank. The taxi fare was payable by the University out of conference funds;
(i)The taxi left The Royal Women’s Hospital area a little before midnight and arrived at her home at View Bank, without deviation, at about 12.15 am on 28 November 2003;
(j)Upon arriving at her home address, the taxi parked partly in Ms Butler’s driveway, with the rear of the taxi protruding slightly into the roadway. She exited the taxi via the rear passenger-side door;
(k)She then leaned back into the taxi to retrieve her handbag and envelope. Both her handbag and the envelope included the documents relating to the conference referred to above;
(l)Having retrieved those items, she straightened up and stepped back slightly in order to close the taxicab door. At that point she was standing on the nature strip of the curved section at the corner of her driveway and curb. As she stepped back she toppled backwards, allegedly due to the uneven and disrupted surface of the nature strip. She could not regain her balance and fell backwards onto her buttocks. She sustained a fracture of the neck of her left femur (“the injury”). She was later treated at hospital and elsewhere in respect of the injury;
(m)For some months prior to 27 November 2003, Banyule had been conducting curb and channel rectification works in the immediate vicinity of Ms Butler’s home;
(n)In the WorkCover claim form completed by her in December 2003,[7] Ms Butler, in answer to a question 17 – “What were you doing just before the injury occurred?”, answered “Collecting documents for safekeeping overnight”;
(o)In answer to question 15 – “When did the injury/condition occur?”, Ms Butler ticked boxes indicating that the injury occurred in the course of her work, while travelling to or from work, and while working elsewhere;
(p)In answer to question 18 – “What happened unexpectedly?”, Ms Butler stated “I lost my footing and fell”;
(q)In answer to question 22 – “Do you believe your injury/condition was caused/contributed to by a third party such as a manufacturer/supplier?”, Ms Butler ticked a box indicating that she did have such belief and wrote “Banyule Council. No backfill after gutter replacement”.
[7]CB 58
14 The parties are in agreement that:
(a)Ms Butler made a claim for benefits pursuant to the Act.
(b)The claim was accepted by the University, which is a self-insurer in respect of benefits payable under the Act.
(c)The University made payments to or on behalf of Ms Butler (weekly payments and medical and like expenses) consistently with its acceptance of her claim.
15 Both parties provided me with helpful written submissions concerning the questions to be determined.
Did Ms Butler suffer injury arising out of or in the course of her employment with the University?
16 In submissions I was referred to Reid Stockfeeds Pty Ltd v Lindhe,[8] a decision in which Kyrou J considered whether an injury to the plaintiff had occurred in the course of his employment. His Honour cited Dixon J in Henderson v Commissioner of Railways (WA):[9]
“To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. ... Where the accident arises shortly before the beginning of actual work, or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected, or authorised to do in order to carry out his actual duties.”
[8][2008] VSC 304
[9](1937) 58 CLR 281 at 294
17 The above quotation was referred to by Kyrou J as “the Henderson principle”.
18 The High Court also considered the issue in Hatzimanolis v ANI Corporation Ltd.[10] The Court said:
“Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’.”
[10](1992) 173 CLR 473 at 484
19 Hatzimanolis related to an incident during an interval or interlude in the work process. Kyrou J stated that the Henderson principle continues to apply in cases that do not involve an interval or interlude.[11]
[11]Reid Stockfeeds Pty Ltd v Lindhe (supra) at paragraph 19
20 Counsel for the plaintiff submitted that the onus of proving that the injury to Ms Butler did not occur in the course of her employment lay on the defendant because it had raised the issue in its Amended Defence. I do not agree. The plaintiff did plead that, at all material times, the worker (Ms Butler) was acting in the course and/or scope of her employment with the University.[12] I consider that this is a fundamental pleading in the context of the claim and that the University carries the onus of establishing what it alleges.
[12]CB 24, paragraph 4
21 Counsel for the defendant submitted that Ms Butler’s injury was not suffered by her in the course of her employment. Correctly, he pointed out that whereas, historically, injuries to workers occurring whilst journeying between their home and their place of employment were deemed to arise out of or in the course of employment, this was no longer the case. Section 83(2)(b) of the Act makes this clear.
22 Counsel submitted that Ms Butler was injured on her journey home. That journey was said to have begun when she left Melbourne University to get a taxi and travel home. He submitted that there was no evidence which allowed the conclusion that the University required, expected or authorised her to do anything with the documents she had in her possession. There was no evidence that she was required to or intended to work on the documents at home. He submitted that, as a matter of probability, she had taken the documents home rather than leaving them at the University as a matter of convenience for her.
23 In considering the issue, I have taken into account the following:
(a)Ms Butler’s duties in connection with her employment with the University included responsibility for coordinating seminars and conferences of the type that she was involved in on 27 and 28 November 2003.
(b)Her duties included attendance at a conference dinner on the night of 27 November 2003 which was held in Sunbury, a considerable distance from the University.
(c)She had taken with her a list of delegates, cheque book, receipts and other associated documents to the dinner. I am able to infer that these documents were important and directly related to her employment duties. I further infer that it was necessary for Ms Butler to take such documents with her to the dinner at Sunbury and for her to retain them after the dinner.
(d)Transport was provided by the University from the University to the Sunbury venue and back to the University following the dinner. The bus returned to the Law School at the University late at night. Ms Butler was not employed at the Law School but in the Civil and Environmental Engineering Department, which I infer, is at a different part of the University.
(e)Her fall and injury were directly related to her act in reaching into the taxi to retrieve her bag and envelope in which the work documents were located.
(f)I infer that, on the balance of probabilities, it was not practical for Ms Butler to return the work documents to the Civil and Environmental Engineering Department, given the time and place at which she had been returned to the University. I conclude that her employer would have expected her to retain those documents securely overnight and return them to the department or to the conference venue the following morning. I consider the situation would have been the same had she organised transport directly from the Sunbury dinner venue to her View Bank home.
24 I conclude that at the time that she fell, Ms Butler was acting in the course of her employment with the University. Put another way, I consider that her returning from the conference dinner to her home with work documents to be secured overnight was incidental to her employment with the University and fits within the Henderson principle set out above.
25 In Victorian WorkCover Authority v Michaels,[13] the Court said:
“We are not persuaded that the expression ‘in the course of his employment’ should be considered in such a rigid way. ... What must be shown is that the injury was suffered in the course of activities done as part of the work which the employee was engaged to perform.”[14]
[13][2009] VSCA 261 at paragraph 16
[14]VWA v Michaels (supra) at paragraph 16
26 Further, the Court said:
“We have mentioned that the fundamental requirement of the expression in question is that there be a relationship between the activity engaged in at the time of injury and the work which the employee was engaged to perform – the activity must be incidental to the performance of this work.”[15]
[15]VWA v Michaels (supra) at paragraph 19
27 Kyrou J, in Reid Stockfeeds Pty Ltd v Lindhe,[16] after pointing out that many cases have applied the Henderson principle, said:
“Although not all of the cases have used the same language as Dixon J in Henderson and Speechley, they have all required that there be a nexus (which has sometimes been very slight indeed) between the relevant activity and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service. The outcomes of the cases have varied and have largely turned on their facts. A trend, however, can be discerned towards the adoption of a more liberal approach to whether something is ‘in the course of’ employment. It is only possible to reconcile the application of the Henderson principle with decisions in many modern cases by a strained interpretation of the words ‘in order to carry out his actual duties’.”
[16]supra
28 In the circumstances before me, I do not consider that it is necessary to employ any strained interpretation of words in order to conclude that there is a sufficient nexus between Ms Butler’s journey home with the relevant work documentation and the performance of the duties for which she was undoubtedly employed.
29 For the reasons expressed above, I consider that the answer to Question 1 should be in the affirmative.
Are the payments made by the plaintiff to Ms Butler or for her benefit payments of compensation that fall within and enliven s.138 of the Act?
30 In view of my answer to Question 1, it is not necessary for me to proceed to answer the second question.
31 However, in case I may later be held wrong in relation to my answer to the first question, it is appropriate to proceed to answer the second.
32 Section 138 of the Act has been set out above.
33 Insofar as is relevant to this question, the section refers to “compensation” that has been paid or may be payable by a self-insurer. That the expression “compensation” is referable to compensation payable under this Act is made clear by sub‑s.(3). Plainly, if there has been no compensation paid under the Act, there can be no liability to indemnify under s.138.
34 Counsel for the University submitted that:
(a)Ms Butler had suffered injury when she fell in the early hours of 28 November 2003.
(b)Ms Butler had submitted a claim for WorkCover benefits in respect of that injury.
(c)The University had accepted that claim.
(d)The University had paid WorkCover benefits to or on behalf of Ms Butler as a consequence of the claim and its acceptance of it.
(e)It followed that those payments were payments of compensation within the meaning of s.138 (1) of the Act, and that the University was entitled to be indemnified by the defendant in accordance with s.138 (subject, of course, to proof that there was a liability in the defendant to pay damages to Ms Butler).
35 Counsel for the plaintiff further submitted that it was not open to the defendant to argue that the payments made to or on behalf of Ms Butler need not have been made for one reason or another. He submitted that, provided the payments had not been made by way of a gift or ex gratia, so long as they had been made as “compensation”, those payments fell within the meaning of that expression in s.138 of the Act.
36 I am not able to agree with these submissions.
37 There are any number of different circumstances in which payments might be made by an employer (by that expression, I mean the Victorian WorkCover Authority or a self-insurer) purportedly as compensation pursuant to the Act. Examples include:
(a)Payments made bona fide by an employer in respect of an injury to a worker that plainly occurred in the course of employment. These obviously could fall within s.138 of the Act;
(b)Payments made bona fide by an employer in respect of a claim made fraudulently by a worker – for instance, where injury occurred in circumstances which clearly were not in the course of employment;
(c)Payments made fraudulently by an employer as part of a arrangement with a fraudulent employee in respect of an injury which either did not occur in the course of employment or did not occur at all;
(d)Payments made purportedly in accordance with the Act but by mistake. For instance, where the employer had intended to reject a claim by a worker but where the claim had been accidentally admitted in error;
(e)Where a claim had been initially and properly admitted by an employer but where, at some later date, the worker had fully recovered from injury and, in circumstances unknown to the employer, had returned to work, yet continued to receive weekly payments.
38 There are no doubt many other examples of payments purportedly made under the Act.
39 Pursuant to s.114F of the Act, the Authority or a self-insurer may recover from a worker any payment of compensation or other amount to which the worker is not entitled. This section appears to cover a situation where the Authority or a self-insurer has made payments of compensation to which, for any of a number of reasons, the worker was not entitled.
40 Counsel for the plaintiff submits that, notwithstanding that right of recovery, such payments purportedly made as compensation under the Act, even those to which the worker was not entitled, can be the subject of a claim for indemnity from a third party tortfeasor pursuant to s.138 of the Act. I am unable to accept that submission.
41 I consider that the right of indemnity pursuant to s.138 is confined to payments that have been properly made under the Act. That is, payments that the Authority or self-insurer were obliged to make by reason of the provisions of the Act. Section 138(3) refers specifically to amounts of compensation paid or payable “under this Act”. I consider that payments made under the Act are payments that are required to be made by reason of the provisions of the Act, rather than payments which have been made accidentally or as a consequence of some fraud or as a result of some misunderstanding as to the circumstances in which an injury was suffered by a worker.
42 In the context of this proceeding, the defendant submits that payments of compensation ought not to have been made to Ms Butler because her injury was not suffered in the course of her employment. I have found against this submission. However, in the event that her injury had occurred in circumstances that did not arise out of or in the course of her employment, I do not consider that the University would have a right pursuant to s.138 for an indemnity from the defendant in respect of such payments. If this were the case, the University would have to rely upon its rights pursuant to s.114F to recover payments made by it.
43 Were it otherwise, the Authority or a self-insurer could accept any claim by a worker in respect of injuries, and pay compensation without adequately investigating the circumstances of such injury, in the belief that it could seek an indemnity from a third party such as the defendant. I do not consider that this could have been the intention of Parliament when enacting s.138.
44 I consider that the expression “compensation paid or payable under this Act” in s.138 should be interpreted as meaning “compensation properly paid under the Act” or “compensation paid pursuant to a duty or obligation imposed by the provisions of the Act”. I consider that the use of the expression “under this Act” in sub‑s.(3) distinguishes such payments from those made voluntarily or in error or as a consequence of a fraud. Different considerations would apply where payments of compensation have been made by the employer pursuant to an award or order of a Court.
45 Counsel for the defendant submits that in an application under s.138 of the Act, the onus lies on the plaintiff to establish, on balance of probabilities, that the circumstances are such as to entitle it to the indemnity sought. I consider this to be a correct proposition. That submission obtains support from earlier authorities,[17] notwithstanding that they were dealing with earlier and not identical legislation. It is not enough for an employer to merely prove that payments have been made to or on behalf of a worker and that such payments have been designated or nominally entitled payments of “compensation”. It is the true nature of the payments that must be considered, not merely the title given to them by the employer or even the intention of the employer at the relevant time.
[17]O’Brien v Bain [1975] 1 NSWLR 373 at 376, 381; Bain v O’Brien [1976] 135 CLR 158 at 160-1
46 I consider that the right to an indemnity pursuant to s.138(1) and (3) of the Act requires the plaintiff in such a proceeding to establish, on balance of probabilities, that compensation had indeed been paid “under the Act”.
47 If, contrary to my answer to Question 1, Ms Butler’s injuries had not been suffered in the course of her employment, I would answer Question 2 in the negative.
Conclusion
48 Question 1 should be answered in the affirmative.
49 If it were necessary to answer Question 2, it should be answered in the negative.
50 I shall hear the parties in respect of costs.
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