Victorian WorkCover Authority v Sapalovski
[2019] VSC 851
•20 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02877
| VICTORIAN WORKCOVER AUTHORITY | Appellant |
| v | |
| DRAGI SAPALOVSKI | Respondent |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 November 2019 |
DATE OF JUDGMENT: | 20 December 2019 |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Sapalovski |
MEDIUM NEUTRAL CITATION: | [2019] VSC 851 |
ACCIDENT COMPENSATION – Workers compensation – Injury arising out of or in the course of employment – Deemed employment – Whether worker ‘temporarily absent …during any authorised recess’ – Meaning of ‘authorised recess’ – Workplace Injury Rehabilitation and Compensation Act 2013 ss 39, 46.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Fleming QC and Ms F Spencer | IDP Lawyers |
| For the Respondent | Mr A Ingram QC and Mr P Johnstone | Arnold Thomas & Becker |
HIS HONOUR:
The appellant, the Victorian WorkCover Authority (‘VWA’), appeals on questions of law[1] against orders of a Magistrate made at Melbourne on 26 November 2018. The Magistrate ordered that the VWA pay the respondent, Dragi Sapalovski, weekly payments of compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) and reasonable medical and like expenses. That order was made on the basis that the respondent’s shoulder injury arose out of or in the course of employment under s 46(1)(a) of the Act.
[1]Pursuant to s 109 of the Magistrates’ Court Act 1989.
Background
6 and 7 April 2016
Commencing in June 2008, the respondent, Mr Sapalovski was employed as a maintenance operator by Melbourne Door Manufacturing Pty Ltd and generally worked at his employer’s factory at Ferris Road, Melton. On 6 April 2016, the manager requested that he go to another of his employer’s factories at High Street, Melton, as had previously occurred from time to time. The Magistrate found that a manager screamed at the respondent during this conversation, for reasons which were not clear to him, and that the other workers seeing him treated in that manner had started laughing at him.[2]
[2]Transcript of proceedings, Sapalovski v Melton Door Manufacturing Pty Ltd (Magistrates’ Court of Victoria, G12564358, 19-21 June 2018), 7-8, 30 (‘T’); Statement of reasons, Sapalovski v Melton Door Manufacturing Pty Ltd (Magistrates’ Court of Victoria, G12564358, 26 November 2018), 2 (‘Reasons’).
The following day, 7 April, the respondent again reported to the High Street Melton factory. He worked a 7:30am to 4pm shift. Upon asking management how long he would be at that factory, he was verbally abused by Mr P Hadfield and became upset and stressed.[3]
[3]T 32-33.
Shortly after that incident, at about 11:30am the respondent, who was aged 59, went to see Mr F Cassar, the managing director. Mr Cassar said that in his opinion the respondent was not happy working at the High Street factory.[4] He said that the respondent appeared ‘a bit agitated or frustrated’,[5] although he was ‘okay’,[6] not having any ‘sweating or any anxiety or anything of that nature’ that he could see nothing wrong with him.[7] He kept telling Mr Cassar that he thought his ‘blood pressure might be going high’ and that he ‘wanted to go to the doctor’.[8] Mr Cassar said that was fine and ‘Okay… you go to see the doctor’.[9] Mr Cassar had never heard previously that he had any problems with blood pressure.[10] He asked the respondent ‘are you okay’ and he replied ‘yeah’.[11] The respondent said that he was ‘all shaken up and stressed… my heart was racing… nothing like that has happened before’. He probably told Mr Cassar about his blood pressure ‘getting high’, but also told him that his supervisor was yelling at him and that he needed to see a doctor. He said that Mr Cassar said to him: ‘Dragi, you go to the doctor, I’ll fix the problem mate’.[12]
[4]T 119.
[5]T 119.
[6]T 119.
[7]T 119.
[8]T 120.
[9]T 120.
[10]T 120.
[11]T 120.
[12]T 34.
Mr Cassar’s evidence on whether he expected the respondent would return to work was as follows:
When he left was there any discussion about him coming back to work, when he left your office was there any discussion about him coming back to work that day? --- He didn’t say that he would be back that day, no, he didn’t.
HIS HONOUR: Did you assume that he was going to the doctor and he would then take the doctor’s directions as to what ought – what would happen? --- Correct. Correct, yeah.
Either go back to work or go home and have a rest? --- Yeah. Yes.[13]
[13]T 116.
The respondent’s evidence as to whether he thought that he would return to work was as follows:
I suggest to you that when you left the factory, your intention was to go home after you went to see the doctor. What do you say? --- Well I had to see what the doctor was going to say.
You weren’t planning on coming back to work that day, were you? --- I don’t think so because I was feeling really bad.[14]
[14]T 54.
Soon after speaking to Mr Cassar, the respondent left the factory and drove up the Western Highway towards his doctor’s practice in Caroline Springs. Near Rockbank he passed out, veered off the road and collided with a roadside post or object. The Magistrate stated in his reasons that ‘the implication was that this occurred as a result of his stress levels.’[15] Next, the respondent called Mr Cassar and told him what had happened, and Mr Cassar sent two workers from the factory to the scene of the accident. One of those workers, Mr Hadfield, drove the respondent to the medical centre, where he was seen by Dr M Calic and who gave him some tablets and Mr Hadfield then drove him home. The other worker drove his car back to work. Mr Hadfield gave evidence about his conversation with the doctor as follows:
Yeah, I took him there, we had a light conversation on the way there, he directed – directed me to the doctor, I parked the car out the front and dropped him off. And then as I came back in the doctor came out and asked for me to come in. And I went in thinking, why am I going on there? And she said, how could you let this man drive? And I was like, whoa, whoa, hang on, what do you mean, what – you know, because two minutes prior to that he was quite fine, and all of a sudden he was all emotional on me, so there was a quick dramatic change. [16]
[15]Reasons 3.
[16]T 103-104.
The Magistrates’ Court proceeding
After the respondent unsuccessfully claimed weekly compensation payments from his employer, he commenced proceedings against the VWA in the Magistrates’ Court.[17] He sought weekly payments of compensation and the payment of medical and like expenses for two discrete injuries: the first being psychiatric injury in the form of the ‘production, aggravation and/or exacerbation of adjustment disorder, anxiety depression with an acute anxiety episode’; the second being injury to his neck and right shoulder. The first injury the respondent said he suffered arose from the abuse and humiliation suffered by him on 6 and 7 April 2008 and the second injury he said he suffered arose from the vehicle collision on 7 April. He claimed that both injuries arose out of or in the course of his employment.
[17]Court Book, Victorian WorkCover Authority v Sapalovski (Supreme Court of Victoria, S ECI 2018 02877, Ginnane J), 29 (‘CB’).
The proceeding was heard before a Magistrate on 19, 20 and 21 June 2018. On 26 November 2018, the Magistrate delivered judgment and gave substantial ex tempore reasons for his decision. His Honour found in favour of the respondent and held that both claimed injuries occurred in the course of employment. He ordered: first that the VWA pay the respondent weekly payments of compensation pursuant to the Act, secondly that the VWA pay the respondent’s reasonable medical and like expenses pursuant to the Act, thirdly that the VWA pay interest pursuant to s 193 of the Act and fourthly that the VWA pay the respondent’s costs.[18]
[18]CB 382.
In a key passage of his reasons the Magistrate stated:
Returning now to the circumstances of the case. I have already made a finding that the [respondent] suffered a mental injury in the course of his employment on 7 April 2016 while present at his work place and that required him to leave the work place at [Melton] to travel to his doctor at Caroline Springs for treatment. He sought and received the authorisation of the managing director Mr Frank Cassar to leave work and go to the doctor. I find that this constituted an authorised recess within the meaning of the Act. Nowhere in the evidence was it contemplated that any time limit was to be placed on his absence for the purpose of going to the doctor. In normal circumstances one [possibility] would be that [he] return[ed] to work after attending a doctor or obtain a certificate of incapacity and he’d have taken it back to work and gone home or gone straight home and advised work accordingly. In either circumstance his absence would not have been long and would have fallen within the meaning of authorised recess either as contemplated by President Winneke or Justice of Appeal Phillips on the one hand, or Justice of Appeal Charles[19] on the other hand. Therefore, I find that the plaintiff’s shoulder injury was also compensable.[20]
[19]This was a reference to the judgments in TGT Transport v Zammit (2000) 2 VR 312.
[20]Reasons 19-20.
Grounds of appeal
The VWA appeals against the judgment and final orders 1 and 2 made by the Magistrate. The appeal challenges only the Magistrate’s finding on the second injury, the neck and shoulder injury caused in the car collision.
The VWA’s questions of law and grounds of appeal are substantially in the same terms. Taking the grounds of appeal, they allege that the Magistrate erred in law in concluding that the neck and shoulder injury arose out of or in the course of employment, and are as follows:
1.In concluding (at T20.17-18) that the respondent’s shoulder injury was also compensable because it was deemed to arise out of or in the course of employment, the Magistrate erred in law by failing to correctly construe or apply s 46(1)(a) of the Act.
2.In reaching a conclusion (at T20.17-18) that the respondent’s shoulder injury was also compensable because it was deemed by s 46(1)(a) of the Act to arise out of or in the course of employment, the Magistrate erred in law by equating an injury which occurred during an authorised absence from the place of employment with an injury occurring while the respondent, having attended at his place of employment, was temporarily absent therefrom on that day during an authorised recess.
3.In reaching a conclusion (at T20.17-18) that the respondent’s shoulder injury was also compensable because it was deemed by s 46(1)(a) of the Act to arise out of or in the course of employment, the Magistrate erred in law in that the conclusion lacks an evident and intelligible justification or is otherwise legally unreasonable.
4.Upon the facts found by the Magistrate, it was not open to him to conclude, upon a proper construction of s 46(1)(a) of the Act, that the respondent had suffered injury whilst, on a working day on which he had attended his place of employment, he was temporarily absent on that day during an authorised recess.[21]
[21]CB 2-3.
The grounds of appeal focused on the Magistrate’s application of s 46(1)(a), which deems a worker’s injury to have arisen out of or in the course of employment if the injury occurs while the worker is ‘temporarily absent’ during ‘any authorised recess’. The crux of the VWA’s appeal is that the Magistrate erred in concluding that the vehicle collision and shoulder injured occurred during an ‘authorised recess’.
The VWA seeks orders to the effect that it pay the respondent compensation payments and his reasonable medical and like expenses only in relation to his psychiatric injury, and that his claim for compensation and medical expense for the neck and shoulder injury be dismissed.[22]
[22]CB 3.
Legislative Scheme
For present purposes, to be entitled to compensation under the Act, a worker must have suffered an injury arising out of or in the course of their employment, as set out in s 39(1):
39 Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.
This appeal principally concerns s 46(1)(a) of the Act, which deems certain situations to have occurred ‘in the course of employment’ for the purposes of s 39(1), and is as follows:
46 Out of or in the course of employment
(1) An injury to a worker is deemed to arise out of or in the course of employment for the purposes of section 39(1) and (2) if the injury occurs—
(a) while the worker on any working day that the worker attended at the place of employment having been present at the place of employment is temporarily absent on that day during any authorised recess and does not during that absence voluntarily subject himself or herself to any abnormal risk of injury; or
The Accident Compensation Act 1985, which preceded the Act and which was the legislation which many leading authorities in this area consider, contained a similar provision in s 83:
83 Out of or in the course of employment
(1) An injury to a worker is deemed to arise out of or in the course of employment for the purposes of section 82(1) and 82(2) if the injury occurs—
(a) while the worker on any working day that the worker attended at the place of employment having been present at the place of employment is temporarily absent on that day during any authorised recess and does not during that absence voluntarily subject himself or herself to any abnormal risk of injury;
The respondent has already been compensated for expenses incurred on surgery and subsequent rehabilitation by the Transport Accident Commission.[23] At the time of the trial before the Magistrate, he had lodged a claim for further payments against the Transport Accident Commission but had not yet received those payments, in part, it seems, because he had not yet exhausted his rights against the VWA.[24] This case appears to arise because of the operation of s 38A of the Transport Accident Act 1986 (Vic), which governs in which cases liability for the making of compensation payments instead shifts to the Victorian WorkCover Authority. It provides:
38A Commission not liable where compensation payable under Accident Compensation Act 1985 or Workplace Injury Rehabilitation and Compensation Act 2013
The Commission is not liable to pay compensation in respect of a person who, on or after the commencement of section 67 of the Accident Compensation (WorkCover) Act 1992, is injured or dies as a result of a transport accident to a person who is, or appears to the Commission to be, entitled to compensation in respect of that injury or death under the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013.
[23]Appellant’s submissions [8].
[24]T 39.5-21.
The Authorities
One of the VWA’s main submissions was that the Magistrate had misapplied the Court of Appeal decision in TGT Transport v Zammit (‘Zammit’).[25] It is necessary to set out the facts and findings of Zammit in some detail.
[25][2000] 2 VR 312.
The case concerned a truck driver who was engaged by his employer to drive one of its trucks on an interstate haulage trip to Brisbane and return. Upon unloading his cargo at the destination depot near Brisbane, he was to take his truck to a roadside service station in Rocklea and wait in the hope of being assigned a ‘return load’ to take with him back to Melbourne. While he waited he was to reside in his truck and, if no return load could be arranged, he was to return to Melbourne with an empty truck. After delivering his cargo, his boss (and brother) was informed that the chance of securing a return load that day was improbable. Zammit, his boss and a third driver travelled to a farm outside of Brisbane to assist the third driver to unload a four-wheel drive vehicle onto his truck. In doing so, Zammit suffered an injury to his leg which ultimately led to his death. Zammit’s widow sought compensation for herself and her two dependent children. At trial, it was found that Zammit’s injuries were sustained during an authorised recess, which s 83(1)(a) deemed to arise out of or in the course of employment.
On appeal, a majority of the Court of Appeal[26] found that it was not open to the primary judge to find that the deceased’s injury was sustained while absent from the workplace ‘during an authorised recess’. Their Honours reviewed the history of the provision and the relevant authorities, and accepted and applied the interpretation of ‘ordinary recess’ set out by the Full Court of the Supreme Court in Drummond v Drummond (‘Drummond’).[27] Relevantly, their Honours stated:
The extended operation of s 8(2)(a) is intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunchtime, or a 'smoko' or similar break normally referred to as a 'recess'. The section extends to injury during such a recess, even though during such recess the worker may be temporarily absent from his place of employment. If on its true construction the extension covers such a case as the present the applicant will be entitled to recover.…
The word 'recess' in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or 'smoko'. It is a period of rest incidental to a period of labour, in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day.[28]
[26]Winneke P and Phillips JA; Charles JA dissenting.
[27][1960] VR 462.
[28]Ibid 463.
In Drummond, a worker was injured in the interval between ceasing work at lunch time and returning to further work later in the evening. He was found not to be on an authorised recess. A break of five to six hours was too long to be considered a recess, and was better characterised as a break after the cessation of one period of work and the beginning of another.[29] The Court’s interpretation of ‘recess’ in Drummond was approved by the High Court in Landers v Dawson (‘Landers’).[30] The majority in Landers stated that:
It is unnecessary to attempt to define exhaustively the meaning of the words ‘ordinary recess’ in the context in which they appear in the Act…[31]
[29]Ibid 463.
[30](1964) 110 CLR 644.
[31]Ibid 651 (Kitto, Taylor, Menzies and Owen JJ)
Relevantly, Windeyer J stated in his concurring judgment that:
By " an ordinary recess", I take it, is meant a break or interruption of limited duration in the continuity of a normal working day, regularly allowed for meals or rest. The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. Recesses, variously called lunch-hours, tea breaks, smokos, stand-downs etc., are normal features of employment in many industries. They are ordinary recesses.[32]
[32]Ibid 654 (Windeyer J).
In Zammit, Winneke P reviewed these authorities and concluded that, although it was open for the trial Judge to find that the incident occurred on a ‘working day’, that he was present at his place of employment and that the absence from the workplace was authorised, it was not open for His Honour to find that the absence was a ‘recess’. The basis for that decision was that Zammit’s absence was not a ‘relatively brief interruption in an otherwise continuous period of work’. Winneke P found that the actual work Zammit was employed to do had ceased when he left the roadhouse and it was probable that there would be no further work that day. He stated:
But, whether the term ‘ordinary’ or ‘authorised’ is used, its meaning is necessarily confined by the words ‘being temporarily absent on that day from the place of employment during a recess’. So long as s 83(1)(a) is so confined, it does not seem to me that the range of circumstances in which injuries will be deemed to arise out of or in the course of employment whilst the worker, on a working day, is temporarily absent from his place of employment on that day during a recess, can be much broadened, whether the recess is described as an ‘ordinary’ one or an ‘authorised’ one. As I see it, the words to which I have referred import the elements of brevity, periodicity and suspension of activity which are the defining qualities of a ‘recess’ rather than the description of it as ‘ordinary’ or ‘authorised’.[33]
[33]Zammit (2000) 2 VR 312, 324 [25] (Winneke P).
Phillips JA agreed with Winneke P and found that the finding as to authorised recess was not open to the trial Judge. He drew upon the definition of recess set out in Drummond, and stated that:
…it seems to me clear that Parliament, in referring to a ‘recess’ had in mind a relatively brief interruption to what otherwise would be a continuous period of work, and commonly a continuous period of work on the one day.[34]
[34]Ibid 334 [45] (Phillips JA).
Dealing with the substitution of the word ‘authorised’ for ‘ordinary’, Phillips JA suggested that this dealt with whether a special or extraordinary recess might be covered by the section, as well as those enjoyed more regularly:
Nor can I think the word ‘ordinary’ of particular significance for present purposes. As Hutley, J.A. said in Thompson at 113, an ordinary recess is simply ‘an ordinary one, that is, not one which on a special occasion the employee is given’. In the case under appeal, the recess, if such it was, may have been a special one, given the particular circumstances in which the deceased's absence from early contact at the service station was authorised by Mr. Zammit; but if it was special that is of no particular consequence under our s.83(1)(a) which (unlike its antecedents in Victoria and since its rewriting in 1992) no longer speaks of an ‘ordinary recess’. The only term now used is ‘authorised recess’, which probably admits of a recess granted specially.[35]
[35]Ibid 335 [46] (Philips JA).
Charles JA dissented and concluded that the trial Judge’s finding as to ‘authorised recess’ was open on the facts. His Honour emphasised that the definitions of ‘recess’ in the authorities drawn upon by the majority, such as Drummond, were actually interpretations of the term ‘ordinary recess’. In 1992, the words ‘ordinary recess’ were replaced with the words ‘authorised recess’.[36] Winneke P and Phillips JA considered this point and concluded that the operative word was ‘recess’, and that Parliament had intended to narrow – rather than broaden – the scope of the provision by limiting its application to only recesses that were authorised.[37] Charles JA reached a different conclusion, and viewed the previous authorities as laying ‘particular stress on the use of the adjective “ordinary”’.[38] While accepting that the legislature intended to narrow the scope of the provision by replacing ‘ordinary’ with ‘authorised’, he stated that:
…the omission of the adjective ‘ordinary’ from the wording of s 83(1)(a) in my view removes at least some of the underpinning which led the courts in Drummond v Drummond and Landers v Dawson to conclude that for an ‘ordinary recess’ the period in question is one which would ordinary be described ‘as in recess’.[39]
[36]Accident Compensation (Workers Compensation) Act 1992.
[37]See, Zammit (2000) 2 VR 312, 324-325; 332-335.
[38]Ibid 338.
[39]Ibid 340.
Charles JA then went on to state, when considering the meaning of ‘recess’, that the ‘act of retiring or period of cessation is plainly temporary, but there is no suggestion that the period in question should necessarily be short’.[40] Unrestricted by the emphasis of ‘brevity’ laid out in Drummond, he concluded that Zammit’s trip was one continuous episode of employment and that the trip to assist his colleague in loading a vehicle on his truck could be described as an ‘authorised recess’, even though it could be considered neither brief nor ‘ordinary’.
[40]Ibid 338.
The Magistrate’s application of the authorities – particularly Charles JA’s dissent in Zammit – is central to the appellant’s appeal.
Submissions
Appellant’s submissions
Grounds 1 and 2
The VWA’s first two grounds are that the learned Magistrate misconstrued and misapplied s 46(1)(a), and erroneously equated an authorised absence from the workplace with an ‘authorised recess’ within the meaning of the Act. It submitted that, in light of the authorities, the correct construction of s 46(1)(a) was that not every interval or interlude between two period of work or every absence from the workplace was necessarily a ‘recess’, and being temporarily absent from a place of employment on a working day during a recess connoted a relatively brief suspension of activity in what would otherwise be a continuous period of work. It emphasised that ‘mere authorisation’ was not enough to satisfy the provision, but that the nature and duration of the absence was key to determining whether it was a ‘recess’.
The VWA referred to the evidence at trial. Principally, the evidence and ultimate finding was that the respondent had suffered an incapacitating mental injury independent of the car collision injuries. Further, the respondent gave evidence that, at the time of obtaining permission to go to the doctor and leaving the workplace, he did not think he would return to work afterwards because he was feeling ‘really bad’.[41] The VWA emphasised that the Magistrate made no finding that, but for the transport accident, the respondent would have probably resumed his employment on that same day. Instead the Magistrate identified three hypothetical scenarios: that the respondent would return to work after attending the doctor, that he would obtain a certificate of incapacity and take it to work before going home, or that he would go straight home and advise work accordingly,[42] and stated that in ‘either circumstance his absence would not have been long and would have fallen within the meaning of authorised recess’.
[41]T 54.
[42]Reasons 20.
On this basis, the VWA argued that the Magistrate’s conclusion that the transport injury occurred during a recess showed a misconstruction or misapplication of s 46(1)(a), by equating an injury that occurred during an authorised absence with one that occurred during an authorised recess. There was no consideration of the element of brevity as set out in Drummond and confirmed by Landers and Zammit. The Magistrate even stated that ‘nowhere in the evidence was it contemplated that any time limit was to be placed on his absence for the purpose of going to the doctor’, yet still characterised the absence as a recess.
The VWA paid particular attention to the Magistrate’s consideration of Charles JA’s judgment in Zammit. The Magistrate considered in detail Charles JA’s dissent, highlighting his Honour’s different view as to the requirement of brevity and the importance of the replacement of the word ‘ordinary’ with ‘authorised’. The VWA argued that the Magistrate wrongly followed the dissenting reasoning of Charles JA, principally his notion that brevity was not a condition of ‘authorised recess’.
Grounds 3 and 4
The VWA further submitted that, based on the Magistrate’s findings, it was not open for him to conclude that the respondent suffered his transport injuries during an authorised recess. It contended that the Magistrate needed to make a finding on the probability of the respondent returning to the workplace at the time Mr Cassar authorised his visit to his doctor.
The Magistrate found that the respondent was injured after suffering an incapacitating mental injury and ceased work to travel to a doctor for treatment. There was no expectation or condition that he return to work that day, and the respondent himself thought that he would not return. In two of the three hypothetical scenarios posited by the Magistrate, set out above, the respondent would not return to work duties. The appellant submitted that this was at odds with the Magistrate’s conclusion that ‘in either circumstance his absence would not have been long and would have fallen within the meaning of authorised recess’.[43] The VWA argued that the respondent’s absence could, on no view, be regarded as a recess, as it was not a ‘relatively brief interruption in an otherwise continuous period of work… normally associated with rest, refreshment or relaxation…’.[44] The Magistrate’s finding was a conclusion based on speculative hypothetical scenarios rather than evidence but, even then, the conclusions he reached were not supported by two of those three scenarios, nor by the established facts.
[43]Reasons 20.
[44]Drummond [1960] VR 462, 463.
In so submitting, the appellant referred to the test of unreasonableness stated by the High Court in Minister for Immigration and Citizenship v Li,[45] and argued that the Magistrate’s conclusions on the application of s 46(1)(a) lacked an evident or intelligible justification.
[45](2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ).
Respondent’s submissions
The respondent agreed that the principal question before the Court was whether the Magistrate had correctly interpreted s 46(1)(a) of the Act and whether he had sufficient material to justify the conclusion that he reached by applying it.
The respondent did also refer to Charles JA’s statement[46] in Zammit to the effect that the substitution of the words ‘authorised recess’ for ‘ordinary recess’ had to be given meaning, and referred to the well-established principle that all words in a statute must be given full effect, further emphasising that ‘[t]his principle is more compelling if the word (or phrase) in question has been added by amendment’.[47] He submitted that, applying such established principles, the reasons of the majority in Zammit were clearly wrong and should not be followed, though he conceded that this was not a point that could be argued before a single judge of this Court.
[46]At [62].
[47]R S Geddes and D C Pearce, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014), [2.26].
However, the respondent argued that the result in the present case was the same whether the authorities concerning ‘ordinary recess’ or the reasoning of Charles JA in Zammit was adopted, as the Magistrate expressly concluded in his reasons. The respondent had attended his place of employment, was thereafter temporarily absent in a recess authorised by his employer and, having not subjected himself to an abnormal risk of injury, was injured. Therefore he was injured during an authorised recess within s 46 of the Act. The respondent argued that, at the time his absence was authorised and putting to one side the subsequent vehicle collision, it was more probable than not that he would have been returning to work, and that, when properly considered, this particular recess should be construed as extending until the doctor’s decision on whether the respondent would return to work.
The respondent argued that there was plentiful factual material upon which these conclusions could be reached. He took the Court to a number of transcript references which established that Mr Cassar had suggested and given him permission to visit the doctor.[48] He also pointed to the evidence he had given that, after the accident had occurred that he had called his employer, who had sent one person to take him to the doctor and another person to take his car back to his place of employment. This suggested that, even at the time of his accident, it was not confirmed that the respondent would not be returning to work.[49] He pointed to the fact that when asked what difficulties had prevented him from returning to work on the day of his accident he had replied ‘Yes. I was very stressful, upset, and a lot of pain after the accident, in my neck, shoulder',[50] which he submitted indicated that it was primarily the accident, and not the pre-existing stress levels, which had prevented him from returning to work. He also referred to statements of Mr Cassar, who when asked about the respondent’s appearance at the time of his departure from work stated that:
He was okay. He just complained that he thinks he wants to go to see a doctor and I had no problem with that. I said, ‘I don't know.’ I said, ‘Are you okay?’ He said, ‘Yeah, I'm okay.’ And then he went to the - to see his doctor but – and then I got a call seven minutes after he left… he said, ‘Oh, I need an ambulance. There's been an accident.’[51]
[48]Transcript of proceedings, Victorian WorkCover Authority v Sapalovski (Supreme Court of Victoria, S ECI 2018 02877, Ginnane J, 15 November 2019) 60.23-28, 62.12-16 (‘T2’).
[49]T2 62.30-T63.7.
[50]T 38.
[51]T 114.
In light of this evidence, the respondent argued that, at the time the respondent left work to visit his doctor, it was more probable than not that he would return later that day. Whatever was in the minds of the relevant people, at the time the absence was authorised, determined its character,[52] and at that point there was no intention or expectation that he would not be returning to work that day.
[52]T2 73.15-17.
This was so notwithstanding the respondent’s admission that he had considered such a return unlikely. He was a layperson, and any medical decision about his return to work would be made by the doctor whom he had left work to visit.[53] When he was cross-examined on whether he intended to return to work after seeing the doctor, he had replied that ‘Well, I had to see what the doctor was going to say', and that he had not discussed with Mr Cassar whether he would be returning to work.[54] His non-return to work was only organised and confirmed after he had seen the doctor, who had told him to go home.[55] It was beside the point to speculate at any earlier point about the probabilities of whether he would be returning to work after the visit to the doctor. [56] He submitted that that assessment was to be made at the time when the doctor decided to send him home.[57] His absence was therefore an authorised recess up until his doctor told him to go home.[58]
[53]T2 63.27-28.
[54]T2 67.18-30.
[55]T2 69.22-70.9.
[56]Winneke P and Phillips JA; Charles JA dissenting.
[57]T2 63.16-25.
[58]At times, however, the respondent submitted that the respondent’s absence had begun as an authorised recess and therefore continued as an authorised recess, even after he was told by the doctor to go home – T2 75.13-16.
The respondent distinguished the current circumstances from cases such as Drummond, in which the employee attended a football match between two discrete periods of employment; Landers, in which the employee was injured while swimming after having completed a bread delivery and before returning to a further period of employment; or indeed Zammit, in which the employee was injured while assisting a friend with loading a four-wheel drive onto a truck after having completed a delivery and before being assigned a new one.
Conversely, the current case involved an employee seeking and being granted by his employer permission to leave work to attend a General Practitioner, for treatment connected with emotional abuse he had sustained while at work.
Further Authorities
The respondent submitted that the fact that the recess had occurred at the direction of his employer was particularly relevant. He cited several cases on this point, including the following passage in Hatzimanolis v ANI Corporation Ltd:[59]
Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of an 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 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.”.
[59](1992) 173 CLR 473, 484 (Mason CJ, Deane, Dawson and McHugh JJ) (citations omitted).
He also referred to the more recent case of Comcare v PVYW:[60]
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.
[60](2013) 250 CLR 246, [22] (French CJ, Hayne, Crennan and Kiefel JJ) (citations omitted).
However, the VWA argued that these cases went to the statutory test of ‘in the course of employment’ in s 39(1) of the Act, rather than the deeming provisions in s 46. As the Magistrate had decided the case on the basis of s 46, and the Magistrate’s decision was the subject of this appeal, it submitted that the cases referred to above were irrelevant.
In my opinion, the VWA was correct in so arguing. Comcare and Hatzimanolis were not decided on the basis of the deeming provisions of s 46(1)(a) or their equivalents in other jurisdictions. They were instead decided on the basis of the words ‘out of or in the course of any employment’ themselves, without regard to any deeming provisions, and so in this jurisdiction are relevant to the interpretation of s 39(1) rather than s 46(1)(a). Section 39(1) was put to the Magistrate in the course of oral argument as an alternative way in which the injuries sustained by the respondent might be classed as having occurred within the course of his employment.[61] Indeed, this was the primary manner in which liability was sought be established, the deeming provisions in s 46 being argued as an alternative.[62] The Magistrate was taken to the cases of Hatzimanolis and Comcare,[63] and was informed of the principles regarding inducement and encouragement for which they stood. Nevertheless, he still decided that the vehicle collision occurred during the course of the respondent’s employment exclusively on the basis of the deeming provisions of s 46(1)(a), and did not rely in his reasons on the interpretation given to s 39(1) by Hatzimanolis or Comcare. Indeed, at several points in the transcript he expressed scepticism about that element of the respondent’s claim, saying at various points during the hearing that ‘You’re drawing a long bow’,[64] and ‘Am I to construe this as an inducement or encouragement. I hardly think so.’[65] No cross-appeal was made by the respondent to the Magistrate’s findings or orders arising from this point. Such principles cannot then assist in determining this appeal.
[61]T 12.27-13.29.
[62]T 13.30-31.
[63]T 147, 151-155.
[64]T 13.20.
[65]T 153.17-18.
During the course of the hearing the respondent referred to the existence of many further cases on the topic of recesses. I invited the parties to send a list of further cases that they thought relevant to the determination of this issue.[66] The respondent sent a list of seven further cases. However, six of these seven cases were,[67] as with the cases above, concerned only with the interpretation of the phrase ‘within or arising out of the course of employment’ for the purposes of s 39(1), rather than the meaning of ‘recess’ under s 46(1)(a), and so for the reasons already explained are irrelevant for the determination of this dispute.
[66]T2 66.
[67]Commonwealth v Oliver (1962) 107 CLR 353; O’Brien v Commonwealth (1967) 117 CLR 66; Davidson v Mould (1944) 69 CLR 96; Lee v Transpacific Industries Pty Ltd [2013] FCA 1322; Commonwealth v Lyon (1979) 24 ALR 300; Wolmar v Travelodge Australia (1975) 26 FLR 249. The appellant referred to Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22, Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222 and The Star Pty Ltd v Mitchison [2017] NSWCA 149.
The remaining case though, Taylor v Stapley,[68] did concern the interpretation of a provision similar to that under consideration in this case, namely s 7(1)(e)(i) of the Workers’ Compensation Act 1926-1951 (NSW), which provided for compensation for injuries occurring when an employee ‘is temporarily absent therefrom on that day during any ordinary recess’.
[68](1954) 90 CLR 1.
The case concerned a 16 year old youth who, during his lunch break while working for a building contractor, had swum with two other youths in a nearby river and, tragically, drowned. However, this case turned entirely on whether the youth, who was ‘anything but a good swimmer’, had voluntarily subjected himself to an abnormal risk of injury by swimming in the river, especially when it had been swollen with rain. It was assumed by all that the lunch break in which he had decided to go swimming was an ordinary recess for the purposes of the Act. While this case perhaps demonstrates that a recess need not be taken at the employee’s place of employment, or need not be restricted to activities such as eating lunch, it does not assist in the resolution of the current case.
Analysis
This case turns on whether when the respondent left his place of work and drove up the Western Highway to visit his doctor on the day of the accident he was ‘temporarily absent on that day during any authorised recess’.
The parties accepted that Mr Sapalovski bore the onus of proof that the accident causing his shoulder injury did occur during an ‘authorised recess’.
I must apply the majority approach in Zammit as to the meaning of the word ‘recess’. Winneke P stated:
… import the elements of brevity, periodicity and suspension of activity which are the defining qualities of a ‘recess’ rather than the description of it as ‘ordinary’ or ‘authorised’.[69]
[69]Zammit at 325
Phillips JA referred to a recess as
‘a relatively brief interruption to what would otherwise be a continuous period of work, and commonly a continuous period of work on one day.[70]
[70]Ibid 334.
An element of the reasoning in the authorities about ‘recess’ is obviously that the employer who is granting the authorisation requires, or at least expects, the worker to return to work at the end of the recess. Related to this is the requirement that the break cannot be so long that it is better characterised as the period between the ending of one period of work and the beginning of another, as was the case with a break of five to six hours in Drummond:
The recess is something in the nature of an interval between two or more periods of work in the normal day. It would not be an ordinary or natural use of language to speak of the period between noon on Saturday and Saturday evening, a period of some five to six hours, as a 'recess'. It is much more than a brief interruption of an otherwise continuous period of work. It is really a period between the cessation of one period of work and the performance of his evening duties.[71]
[71]Drummond [1960] VR 462, 463.
Not every break between periods of work is a recess. While the authorities deal with circumstances quite different from this case, they require that, for a break to be considered a recess, there must be an expectation or requirement that the worker will return to their work, after the break. This expectation must primarily be that of the employer who is authorising the recess. The question is what was the intention of the employer at the time that it authorised the absence.
The evidence suggests that the respondent’s employer did not have a firm expectation that he would return to work after attending the doctor. This is in part evident from the respondent’s own evidence, in which he stated that, at the time, he thought it was unlikely that he would be returning.
Mr Cassar’s evidence suggests that, perhaps not surprisingly, he left matters to the doctor’s assessment of the respondent. This suggests that the employer had no expectation that he would or would not return to work that day. Mr Cassar did not instruct the respondent to return to work after he visited the doctor. While the ultimate decision may have been left in the doctor’s hands, there was nonetheless no requirement or expectation that he would return to work, which is significant in determining whether a break amounted to an authorised recess.
Also significant was the respondent’s state when Mr Cassar told him to go to the doctor. He said that was in a state of anxiety and thought he had high blood pressure following events at work. Mr Cassar did not detect anything particularly wrong with him, but let him go to the doctor. But, the Magistrate found that he had suffered a compensable injury, being ‘an adjustment disorder with anxiety and depression’, from the events at his workplace and before his conversation with Mr Cassar, a finding that was not connected to the later motor vehicle accident.[72]
[72]Reasons 13.
If the respondent had gone to the doctor on his regular lunch break, for instance to obtain a flu shot, or if he had requested a short time to visit the doctor during working hours and thereafter return to work, and during his absence been involved in a motor vehicle accident, it may well be that his injuries suffered would have occurred during an authorised recess. But the respondent was in distress and, unless he had recovered from it rapidly, it was unlikely that the doctor would have suggested that he return to work that day or perhaps even the next working day. After all his upset and anxiety had resulted from events at that workplace and much of his working day was already gone. Given this, it is not surprising that Mr Cassar had no expectation, when he authorised the respondent to go to his doctor, that he would return to work after the visit. In those circumstances, in my opinion, the respondent was not on an ‘authorised recess’ at the time of the motor vehicle accident. The evidence did not support a finding that he was and the respondent therefore did not establish that he was.
When the respondent set off to visit the doctor, his absence from work was authorised, but he was not on an authorised recess.
The respondent may be correct in arguing that, as events actually unfolded, it was in fact the vehicle accident that prevented him from returning to work. But that does not mean that, had that accident not occurred, he would have returned to work, or that there was an expectation that he would.
The respondent’s reliance on the submission that it was significant that whether the respondent returned to work was left to the doctor’s decision raises another important issue. A recess is an interruption in an otherwise continuous period of work, and so requires that the worker return to work, or be expected to return to work, when it ends. But the fact that it was probably up to the doctor to decide whether the respondent should return to work that day leads to at least two possible outcomes. If he followed the doctor’s direction, either he would be directed to go home which is not the end of a recess or he would return to work which might be the end of a recess. A direction that he go home would mean that his visit to the doctor was not a relatively brief interruption in an otherwise continuous period of work. It would therefore lack a defining feature of a recess as defined by Zammit, Landers and Drummond. These possible outcomes suggest that the assessment of whether an employee’s absence from work is an authorised recess depends on whether the employer expected or intended, probably to be determined objectively, that the worker would return to work at its end.
The Magistrates’ reasoning, with respect, reveals that he erred in law by not applying the approach to the identification of ‘authorised recess’ discussed above. He described three hypothetical outcomes of the respondent’s visit to the doctor: that he would go straight home, that he would return to work to drop off a medical certificate before then going home, or that he would return to work. He said that ‘in either circumstance his absence could not have been long and would have fallen within the meaning of authorised recess’.
However, two of the three hypothetical scenarios did not involve the respondent resuming work when his visit to the doctor ended. It is therefore evident that the learned Magistrate erred in considering that they were instances of ‘authorised recesses’ within the meaning of that term. As explained above, Drummond and Zammit make clear that a recess is a break in an ‘otherwise continuous period of work’. It therefore follows that an element of a recess is the recommencement of work. Circumstances may intervene during a recess that prevent the recommencement of work. That is why the time at which to characterise the employee’s absence is when the employer authorises it, rather than later using hindsight. Therefore, in order to ascertain whether the car accident occurred during a recess, the Magistrate had to determine whether the employer when authorising his absence expected or intended that he would return to work after visiting the doctor rather than concluding that ‘in either circumstance his absence would not have been long’. The Magistrate’s reasons focused on the brevity of the respondent’s absence rather than whether the employer had any expectation of the respondent’s recommencement of work.
In my opinion, the Magistrate was wrong to conclude that, in the two hypothesised scenarios he identified in which the respondent would not have resumed work, ‘his absence could not have been long and would have fallen within the meaning of authorised recess’. As mentioned, it is plain from the authorities that for an authorised absence to be a recess, there must have be a requirement or expectation that the worker would return to work. Events may intervene, but at the time of authorisation, the employer must anticipate that the worker will recommence work after the authorised break.
In summary, the Magistrate did not address key questions required to justify his findings that the deeming provision in s 46 applied and in his findings that the shoulder injury occurred during an authorised recess. He therefore made the errors identified in the questions of law and associated grounds of appeal.
There is one other matter. The VWA argued that the Magistrate erred in following the dissenting judgment of Charles JA in Zammit, when he was bound by the majority interpretation of the term ‘authorised recess’. It is true that the Magistrate discussed Charles JA’s judgment at some length, with particular reference to his Honour’s dissenting view as to whether brevity was a requirement of a recess and the significance of the statutory amendment which had replaced the term ‘ordinary recess’ with ‘authorised recess’. The Magistrate stated that the qualification of recess with ‘ordinary’ ‘does not limit the recess to such periods as lunch, morning tea, smoko et cetera but [that] each case must be dealt with according to the nature and circumstances of the employer and the facts of each case’.[73] That statement may well be correct. After that statement, the Magistrate’s reasons addressed the facts of the case and concluded that in any of the three scenarios that he discussed, the respondent’s absence ‘would not have been long and would have fallen within the meaning of authorised recess either as contemplated by President Winneke or Justices of Appeal Phillips on the one hand, or Justice of Appeal Charles on the other hand.’ It rather appears that the Magistrate assumed that the respondent’s visit to the doctor would be classed as an authorised recess applying reasoning of all the members of the Court.[74] However, as I have concluded, the Magistrate did not correctly apply the authorities relevant to the interpretation of the words ‘authorised recess’ to the facts of the case.
[73]T 19.
[74]Reasons 20.
Finally, I do not consider that, as the VWA submitted, that the principles in Minister of Immigration and Citizenship v Li[75] apply to the Magistrate’s decision. Not every error in the application of statutory provisions is an instance of unreasonableness.
[75](2013) 249 CLR 332.
Remedies
The appeal should be allowed and orders of the Magistrate, that were challenged, set aside. I will hear the parties as to other appropriate orders.
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