Victorian WorkCover Authority v Michaels
[2009] VSCA 261
•17 November 2009
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 months, including the examinations and the marking thereof.
6The plaintiff was employed by Victoria University to conduct such courses. The terms of his employment are somewhat unusual, and are largely responsible for the unusual problem which has arisen. The plaintiff was engaged by means of a series of employment contracts of limited duration, these coinciding with trips to China, but with some lead-in time permitted for travel and preparation. Each contract fixed a salary and, on the basis of the two contracts which were tendered, included an allowance for annual leave and professional duty time, this being time allowed for what could loosely be described as professional development. I accept that, in between each contract, the plaintiff was not paid, could do as he wished and, if time permitted, could have engaged in alternate employment. Each contract had a specified commencing date and finishing date, the commencing date not necessarily coinciding with the date of execution of the contract.
7Having engaged in a previous series of contracts, on 21 January 2003, the plaintiff entered into a contract with Victoria University in respect of the period 15 February 2003 to 8 April 2003. During the term of this contract, he again went to the northern Chinese university where he was to teach and examine. As with each contract, I accept that there was some lead-in time and some provision for preparation prior to and during the plaintiff’s time in China. I also accept that Victoria University expects, and indeed demands, pursuant to a document entitled ‘Position Description’, and which is referred to in its contracts, that teachers be well-prepared, well-researched and in a position to carry out the type of professional duties that one might expect.
8In any event, at the conclusion of that contract, the plaintiff returned to Australia.
9On 28 April 2003, he entered into a new contract of employment with Victoria University, and there is no argument but that this written document, executed by both parties on that date, is a contract of employment. As with earlier contracts, there is nominated a specific commencement date and termination date. The commencement date of this contract is 7 May 2003, and the expiration date 22 June 2003. It is specifically described as a fixed term contract which will cease on the expiration date as set out, and the fact that it includes overseas program delivery and approved professional duty time is also included. There is no argument but that, on 28 April 2003, each party executed the contract. There is also no argument but that this term of the plaintiff’s employment with Victoria University was to commence on 7 May 2003.
10The plaintiff, having entered into the contract of employment on 28 April 2003, was, on 30 April, in the bookshop of Angus & Robertson on the corner of Bourke and Elizabeth Streets, Melbourne. His evidence, which was basically unchallenged and which I accept, was that he was browsing through accounting textbooks. He said on oath that it was important that each lecture course be fresh and embrace any changes in relation to accounting practices and standards that may have occurred since the last course. In other words, it was important to keep abreast of change and up-to-date with new business accounting practices and standards. It was also necessary to have some revision of the lecture program, and particularly of the examination papers, so that one class of students could not simply pass on information to the next. Accordingly, the plaintiff endeavoured to keep up with accounting standards and practices, and browsed through, and sometimes bought, textbooks accordingly. He did not charge such purchases to Victoria University, but claimed them as tax deductions associated with the obtaining of his income. He also explained, and I accept, the importance of keeping up with developments whilst in Australia and the comparative difficulty of doing this whilst in China.
11Whilst browsing through accounting texts in the Angus & Robertson bookstore, he became aware of chest pains. The end result was that he took himself to hospital and was ultimately diagnosed as having a dissecting aorta. As previously stated, matters of causation and medicine need not concern us.
12The plaintiff was disabled for a considerable period. He was not able to fulfil his contractual obligations in relation to returning to China in May 2003, but, as matters eventuated, the course in question was called off due to the SARS epidemic.
13Against this background, the question to be determined is whether the events of 30 April 2003 arose out of or in the course of the plaintiff’s employment with Victoria University. This will in turn involve questions as to whether the plaintiff was, at the time, a worker within the meaning of the Act, whether there was or need be an operating contract of employment, and essentially whether the activity in which he was engaged was incidental to his employment. It was effectively conceded that, his apparent term of employment not having actually commenced pursuant to the individual contract, if the activity at Angus & Robertson bookshop was not incidental to his employment, he could not succeed.
The questions which then fell for determination by his Honour are as follows:
(a)Was Mr Michaels at the relevant time a worker within the meaning of s 4?
(b)Was the injury suffered in the course of his employment with the university?
His Honour answered each question in the affirmative making it clear that he made no determination as to the overall liability of the authority, causation, incapacity and the like.[1]
[1]Ruling, [2].
On 30 April 2003 Mr Michaels was not an employee of the university, nor was his specific activity at the relevant time subject to any control or direction by the university. He had completed an eight week period of employment with the university on 8 April 2003 and, on 28 April 2003, he had entered into a fresh seven week contract with the university to commence on 7 May 2003 in its North China campus. The contract in each case required him to prepare and present classes in business accounting and to examine students who might come from China to Australia and enter courses here.
The event which was said to amount to an injury arose in the following circumstances. Again, we set out his Honour’s summary of Mr Michaels’ evidence, which evidence he accepted.
43In the present case, the evidence of the plaintiff was that, on 30 April 2003, he was in the bookshop of Angus & Robertson for the purpose of looking for and perusing accounting textbooks relating to the course which he would teach pursuant to the contract of employment into which he had entered. His evidence in this regard may not have been particularly specific, but, in essence, it was not challenged. It was not suggested that he was in the bookshop looking for and at books which might relate, say, to gardening. It was not challenged but that this was a course of action which the plaintiff had previously undertaken when returning to Melbourne between contracts. He gave evidence as to the necessity of keeping up-to-date, refreshing knowledge and the like. He also gave evidence to the effect that this could not necessarily be achieved satisfactorily in China. The purpose of the course in which he was lecturing was to prepare students for Australian accounting conditions and standards. This required the use and adaptation of Australian textbooks and the keeping up-to-date with changes. I also note that Mr Williams, who was the plaintiff’s superior at the relevant time, stated that the plaintiff had a history of delivering on the duties under the contracts which he had, was capable and knowledgeable, and was indeed very competent. In short, according to Mr Williams, the plaintiff did his job well. This coincides with the impression which I formed.
The appellant before this court did not press the appeal against his Honour’s conclusion that the respondent was a worker. Accordingly, we have no need to consider Grounds 1(a), 2(a), 5(a) or 6(a).
The question remaining is whether he suffered injury ‘arising out of or in the course of any employment’. This is an expression of great antiquity in this area of law but his Honour confessed himself unaware of any authority as to its application to facts such as the present. Nor did the researches of counsel before us produce such authority.
Appeal under s 52 lies only on a question of law raised in the County Court proceeding. The threshold question, therefore, is whether this is a question of law. In S v Crimes Compensation Tribunal,[2] JD Phillips JA formulated the test in three propositions which we have adapted to the present case:
(1)What is the proper meaning, as a matter of construction of the statutory words relevant to the respondent’s entitlement is a question of law.
(2)Once the task of construction is over, the question whether the worker’s particular circumstances fall within the relevant statutory description is essentially a question of fact.
(3)Nevertheless, if, in determining whether the particular circumstances of the worker are such as to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it is a question of law.
[2][1998] 1 VR 83, 88-93.
In his argument developing these propositions, his Honour pointed out that the second proposition is not altogether straightforward. His Honour referred to authorities[3] which would classify this question, at least in part, as a question of law.[4] The resolution of this apparent conflict may lie in the logical argument where the error is said to lie. It is often difficult to say in respect of an impugned decision of this kind whether the error lies in the fact-finding or in the conclusion as to the interpretation of the statute. Nor can it be assumed that the application of these findings, the one to the other, is merely a mechanical process. The question for an appellate court usually arises where the end product of the process is impugned. Logically, the product may be attacked by asserting error within any or all of the three components of the process which led to it. The difficulty in the present case is that the learned judge stated the law correctly and his factual findings were unchallenged. Error, if error there be, must lie in the connecting process.
[3][1998] 1 VR 83, 87.
[4]See also Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2006) 16 VR 131, 145 [77] (Ashley JA).
In this case, the error alleged was that the activity of Mr Michaels at the time of the injury was not sufficiently related to the work which he had been engaged to perform some days later. In this way it was argued that the activity was not incidental to the work, as this expression is used in the authorities. The suggested error, then, falls into an area which JD Phillips JA, in S v Crimes Compensation Tribunal, characterised as a value judgment:
It is in this context that it is sometimes said that where the question is one of degree, involving some element of value judgment, the question is one of fact, not law: Edwards (Inspector of Taxes) v. Bairstow [1956] A.C. 14 at 33 per Lord Radcliffe; de Smith, para. 5-084. Thus if the question whether the claimant’s circumstances fall within the statutory description is one on which minds can legitimately differ, involving a value judgment on the evidence (or other material), it is a matter for the tribunal. In that category one can put most questions of a causal link, or (in a case like this) whether some identified expense was the result of the relevant injury, or whether the claimant suffered ‘total or partial incapacity for work’. Involving questions of degree and evaluation, on the facts as otherwise established, these are essentially questions of fact which are committed to the tribunal, and not to the court. [5]
[5][1998] 1 VR 83, 89.
The question, therefore, which is raised in this appeal is formulated correctly in Grounds 1 and 2. It is whether his Honour’s conclusion, that the injury was suffered in the course of the respondent’s employment, was open.
It is well-established that employment in this expression includes the doing of acts which are merely incidental to the performance of the work which the employee is engaged to perform.[6] In South Maitland Railways Pty Ltd,[7] a case where the deceased worker was shot in an argument with a fellow worker who wrongfully suggested that he was unskilful, Starke J said this:
[6]Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, 294 (Dixon J).
[7](1943) 67 CLR 496.
… the words ‘in the course of’ are not equivalent to ‘during’; the injury must occur in the course of the employment, that is, whilst the worker is doing something which is part of his service to his employer or master or incidental to the employment, or, in other words, whether the workman was at the time the injury about his own business or that of his master.[8]
The High Court upheld the decision of the New South Wales Workers’ Compensation Commission in favour of the applicant. His Honour later expressed the position this way:
Hindle [the assailant] .. was in charge of the toolroom, and though the worker’s act in seeking Hindle was not an act the worker was employed to do, still it was an act incident to his employment or not so far removed from the employment contemplated from the employer and the worker as to exclude it from the course of his employment. It was a natural thing for any worker to do, and not altogether foreign to the employer’s interests.[9]
[8](1943) 67 CLR 496, 502.
[9](1943) 67 CLR 496, 504. See too Park v Peach [1967] VR 558, 562 (Winneke CJ and Starke J), and 565 (Adam J).
In Humphrey Earl Ltd v Speechley, Dixon J said this:
The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon 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.[10]
This was a case where the employee was injured during a lunchbreak when he travelled from his place of work to a town some distance away to obtain food.
[10](1951) 84 CLR 126, 133.
In Fitzgerald v Ainsby Rubber Co,[11] the Full Court was required to consider the application of the expression in question here to a case where the employee at the time of injury had finished his shift but was helping a fellow employee perform overtime duties. O’Bryan and Tadgell JJ, in separate judgments in which Crockett J concurred, emphasised the flexibility of the expression. The question whether the activity of the employee at the time of the injury is sufficiently connected with the employment is a question of fact which remains ‘a matter of degree, in which time, place and circumstance, as well as practice must be considered together with the conditions of the employment’.[12]
[11][1987] VR 437.
[12]Fitzgerald v Ainsby Rubber Co [1987] VR 437, 441 (O’Bryan J) quoting from Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22, 29 (Dixon J). See also 444 (Tadgell J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 481-2 (Mason CJ, Deane, Dawson, McHugh JJ); Park v Peach [1967] VR 558, 565 (Adam J).
In the present case, the injury was suffered seven days before the respondent was to commence his teaching duties. Counsel for the appellant relied much on this interval, referring to the statement in Henderson’s case to the effect that an entitlement may be incidental to the performance of work where the accident arises shortly before the beginning of the actual work.[13] They contended that the requirement of temporal proximity to the commencement of duties expressed in the words ‘shortly before the beginning of actual work’ was such that an accident could not be said to be suffered in the course of employment unless it immediately preceded the commencement of the work.
[13]Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, 294 (Dixon J).
We are not persuaded that the expression ‘in the course of his employment’ should be considered in such a rigid way. Although it is very much encrusted with decades of judicial exposition, it must be to the words of the statute that we turn when considering a novel situation. We accept that, in general, the greater the interval between the injury and the commencement of work, the greater the employee’s difficulty in demonstrating the required relationship. But this is an essentially factual issue which must be considered in all the circumstances. These circumstances will include the nature of the employment and the activity undertaken at the time of the injury and its relationship to the work which the employee was engaged to perform. 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.
In the present case, the respondent/plaintiff was engaged under a contract constituted by an accepted letter of offer dated 28 April 2003. This letter contains a provision whereby the acceptance of the offer constitutes an acceptance of the duties and responsibilities set out in the advertised position description. This document includes an extensive duty statement in which it is made clear that the successful applicant is to ‘research, prepare and teach specialist units in Business…’ and, further, to ‘participate in a personal development program that ensures the teaching practices and teaching content are up to date and relevant to students’. The nature of his employment was such that he was required to apply his skill, both as teacher and as accountant, at a tertiary level. He was, as the judge found, required to be up-to-date in his field. It is true that he was given time for course preparation, but this does not detract from the fact that, as a zealous employee, he would be expected to be abreast of the current learning in his academic area. In a more traditional employment arrangement, where he was engaged on a full time basis, this might well be done during the hours of his employment. Under a short-term contract-based arrangement such as the present, it might have to be done outside that period. In each case, there is the requirement of special expertise necessary for the proper performance of the services for which he was employed.
We were referred to the requirement in Henderson’s case[14] that there be some control by the employer over the activities of the employee at the time of the injury. Such a requirement may be more appropriate where the contract is for the performance of an unskilled or a semi-skilled activity. In the case of a university lecturer, this, as an indication of the required nexus, may be less important.
[14]Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, 294 (Dixon J).
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. In this case, the judge found that the applicant at the time of the injury was in the bookshop looking for and at accounting text books related to the course he was to teach in China. This finding was not challenged.
In the circumstances, it cannot be said that his Honour’s finding that the injury was suffered in the course of the appellant’s employment was not open. The appeal will be dismissed.
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