Victorian WorkCover Authority v Michaels - [2009] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3907 of 2008

VICTORIAN WORKCOVER AUTHORITY
	Appellant
v
DAVID MICHAELS
	Respondent

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JUDGES:	NEAVE and MANDIE JJA, BYRNE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2009
DATE OF JUDGMENT:	17 November 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 261
JUDGMENT APPEALED FROM:	[2008] VCC 928 (Judge Bowman)

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ACCIDENT COMPENSATION – Workers compensation - Injury arising out of or in the course of employment - Accident Compensation Act 1985 s 82(1) - Lecturer engaged by university under fixed-term contract to commence actual employment at a future date – Injury allegedly suffered prior to commencement of actual employment while examining text-books for teaching purposes in a bookshop.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Parrish SC with Mr M Fleming	Minter Ellison
For the Respondent	Mr R Gorton QC with Mr S Smith	Slater & Gordon

NEAVE JA
MANDIE JA
BYRNE AJA:

This is an appeal pursuant to s 52(1) of the Accident Compensation Act 1985 (Vic) (‘the Act’) against the decision of a County Court judge upon a preliminary question in a claim by the respondent/plaintiff, David Michaels, for a declaration of liability to pay compensation under the Act. The question was as to whether, assuming Mr Michaels suffered an injury on 30 April 2003 in the circumstances alleged, this was an injury to a worker arising out of or in the course of his employment with the Victoria University of Technology, within the meaning of s 82(1).

The factual background, which is admirably set out in paras 4 to 13 of his Honour’s ruling is not in dispute.

4There is no great dispute about the factual context in which this ruling is to be made. Whilst there may have been some minor disagreements, essentially there is little dispute. Accordingly, I shall not set out the separate assertions, but shall briefly outline the important facts which seem to me to be scarcely in dispute.
5The plaintiff, a well-qualified man, was employed by Victoria University as a teacher or lecturer, specialising, for the purposes of this case, in business accounting. He has had very considerable experience, including overseas experiences, and is regarded as very competent. Victoria University has entered into what could be described as a partnership with a university in northern China. The end result is that teachers or lecturers employed by Victoria University are sent to its partner university in China in order to teach and examine Chinese students who might then come to Australia and enter courses here. The courses in China are intensive, concentrated and aimed at a standard that could be described as being between Year 12 and first year university. The object of the exercise is to prepare students for Australian courses, and ascertain whether they are capable of undergoing same. As I understand it, the courses conducted in China are a type of entry procedure and examination. Pursuant to the partnership, they are conducted regularly and, as stated, last for a couple of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSCA 261
Decision Date: 17 November 2009

CaseChat Overview and Summary

The case of Victorian WorkCover Authority v Michaels involved the WorkCover Authority and an individual, Michaels. Michaels, a lecturer, had been engaged by a university under a fixed-term contract. The contract was set to commence at a future date, but Michaels was injured before the actual employment began. He sustained the injury while examining text-books for teaching purposes in a bookshop. The issue at hand was whether the injury fell within the scope of workers' compensation under the Accident Compensation Act 1985. Specifically, the court needed to determine if the injury arose out of or in the course of Michaels' employment.

The court had to decide whether the injury suffered by Michaels, while he was examining textbooks for his future employment, constituted an injury arising out of or in the course of employment as per section 82(1) of the Accident Compensation Act 1985. The key legal question was whether the period of preparation and examination of teaching materials in a bookshop, before the actual employment commenced, qualified as being in the course of employment. This involved interpreting the legislative provisions and understanding the nature of the preparatory activities undertaken by Michaels.

In its decision, the court found that the injury did not arise out of or in the course of Michaels' employment. The court reasoned that while Michaels' activities in examining textbooks were preparatory to his employment, they were not activities that were integral to his employment as a lecturer. The court held that the injury did not occur during an activity that was sufficiently connected to his employment as a lecturer for it to be compensable under the Act. Therefore, the claim for workers' compensation was dismissed.

The court did not grant the claim for workers' compensation and found in favour of the WorkCover Authority. This decision clarified the extent to which preparatory activities, undertaken before the actual commencement of employment, can be considered in the course of employment for the purposes of workers' compensation.

Orders