WorkPac Pty Ltd v Shields
[2023] WADC 29
•17 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WORKPAC PTY LTD -v- SHIELDS [2023] WADC 29
CORAM: WHITBY DCJ
HEARD: 7 MARCH 2023
DELIVERED : 17 MARCH 2023
FILE NO/S: APP 69 of 2022
BETWEEN: WORKPAC PTY LTD
Appellant
AND
CIARAN SHIELDS
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA ARBITRATION SERVICE
Coram: ARBITRATOR FLETCHER
File Number : A97476
Catchwords:
Workers' compensation - Appeal from arbitrator - Whether error of law in determining if injury occurred in the course of employment - Whether test in PVYW v Comcare misapplied by arbitrator
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to appeal on grounds 1, 2 and 3 refused
Representation:
Counsel:
| Appellant | : | Mr M J Civitella |
| Respondent | : | Mr A Illich |
Solicitors:
| Appellant | : | Mills Oakley |
| Respondent | : | Eureka Lawyers |
Case(s) referred to in decision(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Comcare v PVYW (2013) 250 CLR 246
Fox v Roy Hill Holdings Pty Ltd [2019] WADC 171
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
WHITBY DCJ:
The appellant is a labour hire company. In September 2020, the respondent was employed by the appellant as a Loader/Mobile Plant Operator. The respondent was hired out by the appellant to Pilbara Iron Company Services Pty Ltd (Rio Tinto) to work at the Hope Downs 1 mine site, in Newman, Western Australia.
As a condition of his employment, the respondent was provided with accommodation at the mine site.
Rio Tinto engaged Sodexo Australia Pty Ltd (Sodexo) to provide, arrange and coordinate recreational activities at the mine site.
On 18 September 2020, the respondent was playing a game of soccer at the mine site, which was arranged by Sodexo. During the soccer game, the respondent sustained a right knee injury.
On 24 September 2020, the respondent, as a result of his knee injury, made a claim for compensation under the Workers' Compensation and Injury Management Act 1981 (Act).
On 1 October 2020, the appellant denied liability for the claim.
On 5 February 2021, the respondent filed an application at WorkCover WA, seeking a determination, pursuant to s 58 of the Act, of liability and payment of weekly compensation and medical and other expenses. The preliminary issue arising for determination in the application was whether the respondent's knee injury arose in the course of his employment.
On 18 November 2022, the preliminary issue was determined by Arbitrator Fletcher in favour of the respondent. The appellant now appeals that decision.
For the reasons that follow, I am satisfied that leave to appeal should be refused.
The arbitrator's decision
The preliminary issue for determination by the arbitrator was whether the appellant was liable for the respondent's knee injury in circumstances where it was sustained during a recreational soccer match organised by Sodexo.
The arbitrator decided the preliminary issue on the papers.
The arbitrator made the following findings of fact on the basis of the statement of agreed facts filed by the parties on 24 June 2022[1] and the joint book of documents for arbitration:[2]
[1] Appeal book, pages 12 - 13.
[2] Appeal book, pages 62 - 227.
(a)the appellant provided the respondent with a notice of offer of casual employment dated 12 June 2020 (Employment Contract) which stipulated that:
Site Policies and Procedures: It is a term of employment that you comply with all site requirements[3]
[3] Appeal book, page 115.
(b)the Employment Contract incorporated by reference the Casual or Maximum Term Employee (FTM) Terms and Conditions of Employment dated 23 January 2018 (Terms and Conditions);[4]
[4] Appeal book, page 161 and page 166.
(c)clauses 6.1 ‑ 6.3 and 14.4 of the Terms and Conditions permitted the appellant and Rio Tinto to engage a third party such as Sodexo, to promulgate and implement policies at the mine site and provided that those policies would be binding upon the respondent. Those clauses provided:
6.1In relation to each assignment, you will be required to undertake your work or duties at the site specified in the relevant Notice of Offer. Site policies and procedures form part of your terms and conditions and Notice of Offers. Failure to comply with the site policies and procedures may result in the termination of your employment and/or assignment.
6.2The site will usually be owned or controlled by the client specified in the relevant Notice of Offer. This may not always be the case. In some instances, the Client may have been engaged to provide services at the site by the owner or controller of the site.
6.3The client (or person in control of the worksite) will be responsible [for] supervision including issuing instructions in relation to work, allocation of work, safety, procedures, policies, inductions and access in relation to the Site. You must comply with all lawful requirements and directions given to you by the client in this regard. Some of these instructions may come from the owner or controller of the Site if that is not the client.
14.4You must comply with all lawful requirements and directions given to you by the client in this regard. Some of these instructions may come from the owner or controller of the site if that is not the client.
(d)the evidence of Kieran Burton, Rio Tinto's production manager, and Michael Nazareth of Sodexo establishes that Rio Tinto engaged Sodexo to promulgate and implement policies aimed at maintaining the health and well-being of residents working at the mine site, including recreational sporting activities; and
(e)the respondent was playing a recreational game of soccer on 18 September 2020 at the mine site which had been organised by Sodexo.
On the basis of these facts, the arbitrator found that:
(a)the respondent was required, by his Employment Contract and cl 6.1 - cl 6.3 and cl 14.4 of the Terms and Conditions to comply with policies, requirements and directions given to him by Rio Tinto or Sodexo during his residence at the mine site;
(b)the policies promulgated and implemented by Sodexo at the mine site included an invitation to engage in recreational activities including the recreational soccer game on 18 September 2020; and
(c)therefore, the appellant at least induced and encouraged if not required the respondent to engage in the recreational soccer game at the mine site on 18 September 2020.
The arbitrator found that, by applying the test in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis) and Comcare v PVYW (2013) 250 CLR 246 (PVYW) to the facts as he found them, he was satisfied that the appellant induced and encouraged the respondent to be at the place where the alleged injury occurred, being the mine site, and to engage in the activity he was involved in when the alleged injury occurred.
The arbitrator was satisfied that the respondent was acting in the course of his employment with the appellant when he engaged in the recreational soccer match on 18 September 2020 and therefore, determined the preliminary issue in favour of the respondent.
Relevant legal principles
Pursuant to s 247 of the Act, the appellant can only appeal the arbitrator's decision with the leave of this court where a question of law is involved and the amount in issue exceeds the thresholds in s 247(2)(a) of the Act.
Given the arbitrator's decision is confined to the preliminary issue of whether the respondent's knee injury was sustained in the course of his employment, the amount in issue has not been determined. However, there is evidence before the court that the respondent was assessed by Dr Evan Jenkins to have a 12.5% impairment of his leg at or above the knee which would equate to an entitlement of $20,647.50.[5]
[5] Appeal book, page 91.
I find that the amount in issue exceeds the thresholds in s 247(2)(a) of the Act. The issue is whether a question of law is involved in any of the grounds of appeal.
The use of the word 'involved' indicates that the court's role is not confined to the determination of pure questions of law, but extends to questions of mixed fact and law: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (BHP Billiton). An error of fact alone is not sufficient: BHP Billiton [5].
A decision will not 'involve an error of law' unless the error is material to the decision of the arbitrator in the sense that it contributes to the decision so that, absent the error, the decision would have been, or might have been different: BHP Billiton [15].
If no question of law is involved, there is no jurisdiction to grant leave to appeal: Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] - [54].
An arbitrator does not make an error of law merely because he or she finds facts wrongly or on a doubtful basis: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21]. However, a finding of fact in the absence of any supporting evidence is an error of law, as is taking into account irrelevant considerations: Fox v Roy Hill Holdings Pty Ltd [2019] WADC 171 [18].
An appeal under s 247 of the Act is by way of a review of the decision appealed against: s 247(5) of the Act. No fresh evidence, or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against, can be given without the leave of the court: s 247(6) of the Act.
The appeal is not a hearing de novo. The court cannot simply ignore the arbitrator's decision and substitute its own decision for that of the arbitrator: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18] (Pacific Industrial).
Unless the review has the effect of persuading the court that the arbitrator's decision should be varied, discharged or otherwise disturbed, the arbitrator's decision should stand: Pacific Industrial [60].
Although no formal orders have been made for the application for leave to appeal and the appeal to be heard together, the parties have proceeded on the basis that I will determine the application for leave and the appeal itself together. In my view, it is appropriate to consider the merits of each ground of the appeal before dealing with the application for leave to appeal.
The grounds of appeal
Ground 1
The arbitrator erred in law by misapplying the test in PVYW when determining the question of whether the respondent was in the course of his employment when playing a recreational game of soccer.
Appellant's submissions
The appellant submits that the arbitrator erred in law by incorrectly identifying and applying the applicable legal test when determining the question of whether the respondent's injury was in 'the course of the employment'.
The appellant says that, in order to correctly apply the test in PVYW, it was necessary for the arbitrator to focus exclusively on the question of whether the appellant had induced or encouraged the respondent to engage in the game of soccer.
The appellant says that the arbitrator's reasons demonstrate that he did not actually consider whether the appellant had induced or encouraged the respondent to engage in the soccer game, despite coming to the conclusion that the appellant had done so.
The appellant submits that the Terms and Conditions to which the arbitrator had regard, were completely irrelevant to the question of whether the appellant had induced or encouraged the respondent to engage in the soccer game. These clauses are only relevant, the appellant says, to the respondent's compliance with site policies, procedures and directions by the client (Rio Tinto) and or the site controller (Sodexo).
The appellant says that the arbitrator has misapplied the test in PVYW by relying on non-specific contractual statements about site behaviours and chain of command, rather than objectively analysing whether the respondent was encouraged or induced by the appellant to engage in the soccer game. The appellant says that the arbitrator incorrectly applied the test in PVYW by reasoning that because the appellant required the respondent to comply with all lawful requirements and directions, it followed that the appellant encouraged or induced the respondent to play soccer.
Respondent's submissions
The respondent submits that the arbitrator correctly applied the test in PVYW by considering the evidence and making a factual finding that the appellant at least induced and encouraged if not required the respondent to engage in the recreational soccer game at the mine site on 18 September 2020.
Determination
Section 18 of the Act provides that if an injury of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with sch 1 to the Act.
The Act requires a connection between injury suffered by the worker and the worker's employment. 'Injury' is defined in s 5(1)(a) of the Act to relevantly include 'a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions'.
The case of PVYW sets out the relevant test to be applied in determining whether an injury arose in the course of employment.
PVYW concerned a worker who, whilst on a work trip, stayed overnight at a hotel arranged by her employer. After her normal duties had concluded for the day, the worker had a guest over to the hotel and had sexual intercourse with him, during which a light fitting above the bed was dislodged and the worker was injured. The worker made a claim for worker's compensation. The High Court of Australia allowed the appeal by Comcare against the decision of the Full Bench of the Federal Court of Australia. The High Court refused the claim for worker's compensation and, by majority, held that while the worker sustained injuries during an interval or interlude within an overall period of work, the activity from which the injury arose (sexual intercourse) was not induced or encouraged by the employer.
The judgment in PVYW clarified the principles arising out of the earlier High Court of Australia decision in Hatzimanolis.
Mr Hatzimanolis, who resided in New South Wales, obtained a job with his employer at Mount Newman in Western Australia. He was told by the employer's supervisor, before leaving for Mount Newman, that he would be working for three months in the area. Whilst at Mount Newman he was accommodated in a camp. On a Sunday, some employees, including Mr Hatzimanolis, were not required to work and the employer organised a trip to Wittenoom Gorge for anyone who chose to go and provided vehicles for the trip. Mr Hatzimanolis was seriously injured when the vehicle in which he was travelling overturned.
In PVYW, the majority, in considering Hatzimanolis, said:
34.Hatzimanolis sought to provide a legal justification for an injury, which occurred during periods of actual work, being regarded as occurring in the course of the employee's employment. It did so by characterising the interval by reference to the employer's inducement or encouragement. The employer's liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer's liability beyond that.
35.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 (72) 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.
36.Moreover it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstance in which it occurred and the employment itself. It achieves that connection by the fact of the employer's inducement or encouragement. Thus, where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
(emphasis added)
In PVYW, the majority confirmed that the relevant question in determining whether an injury is in the course of employment is:[6]
When an activity was engaged in at the time of the injury, the question is: did the employer induce or encourage the employee to engage in that activity?
[6] PVYW [38].
In order to determine whether the respondent's injury was sustained during the course of his employment, the arbitrator was required to answer the following questions:
(a)did the respondent suffer injury while not engaged in actual work?;
(b)what was the respondent doing at the time he was injured?; and
(c)when an activity was engaged in at the time of the injury ‑ did the appellant induce or encourage the respondent to engage in that activity?
The arbitrator applied the test correctly in considering the first two questions and found that the respondent's injury occurred in an interval between periods of actual work, and that it occurred when he was engaged in a soccer match.
The issue is whether the arbitrator, when considering the third question, misapplied the test in PVYW such as to occasion an error of law.
An arbitrator is not required to canvass all of the evidence given in the case and is only required to identify the law that he has applied in coming to his decision and the reasons for doing so: s 213(4) of the Act.
The arbitrator relied upon contractual terms contained in the Employment Contract and the Terms and Conditions requiring the respondent to comply with site requirements, policies, procedures and directions of Rio Tinto and Sodexo to attribute an invitation by Sodexo to the respondent to engage in a game of soccer to inducement or encouragement by the appellant to the respondent to engage in a game of soccer.
The arbitrator clearly identified the correct question that he was required to consider, being whether the appellant induced or encouraged the respondent to engage in the soccer game. The arbitrator made findings of fact based upon the evidence before him which led him to determine that the appellant did induce or encourage the respondent to participate in the soccer game. Even if I am of the view that he found those facts on a wrong or doubtful basis, that does not give rise to an error of law.
The reasoning of the arbitrator in arriving at the conclusion that the appellant induced or encouraged the respondent to engage in the soccer game reveals that he did not misapply the test in PVYW ‑ he did consider whether the appellant induced or encouraged the respondent to engage in the soccer match. The arbitrator found that the appellant 'at least induced and encouraged if not required (the respondent) to engage in the recreational soccer game'[7] because:
(a)the appellant, by the Employment Contract and the Terms and Conditions, required the respondent to comply with site requirements, policies and directions of Rio Tinto and Sodexo;[8] and
(b)the policies promulgated and implemented by Sodexo applicable to the respondent included an invitation by Sodexo to engage in recreational activities, including the soccer game on 18 September 2020.[9]
[7] Reasons for decision, par 18.
[8] Reasons for decision, pars 9 - 12 and par 16.
[9] Reasons for decision, par 17.
An arbitrator does not make an error of law merely because he finds facts wrongly or on a doubtful basis or where he draws an inference, which was reasonably open, even if it appears that the inference was drawn as a result of illogical reasoning.
In summary, I find that the arbitrator applied the correct legal test in determining whether the respondent was injured in the course of his employment. No error of law is established and therefore, ground 1 does not involve a question of law.
I refuse leave to appeal on ground 1.
Ground 2
The arbitrator erred in law by misstating the applicable legal test at [15] of his reasons, concluding that the respondent was encouraged to be at the place where the alleged injury occurred when, on the facts of the case, this was an irrelevant matter.
Appellant's submissions
The appellant says that the arbitrator, by finding that the appellant 'induced and encouraged Mr Shields to be at the place where the alleged injury occurred (Rio Tinto's Hope Downs 1 mine site)' at [15] of his reasons, considered an irrelevant question given that the appellant was engaged in an activity at the time of the injury.
Respondent's submissions
The respondent submits that the arbitrator correctly applied the test in PVWY and that it was a relevant consideration, in applying that test, where the injury occurred, in that the respondent was injured on the mine site but while not actually engaged in work.
Determination
The majority in PVYW said:[10]
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.
(emphasis added)
[10] PVYW [39].
Although I accept that the place where the respondent was injured was relevant to the threshold question as to whether this was an interval case, such as in PVYW, whether or not the appellant induced and encouraged the respondent to be at the place where the soccer injury occurred is not relevant when the respondent was engaged in an activity.
The arbitrator did consider an irrelevant matter when making a finding that the appellant induced the respondent to be at the place where the injury occurred.
However, a decision does not involve an error of law, unless the error is material to the decision in the sense that it contributes to it, so that but for the error, the decision would or might have been different.
Although the arbitrator made a finding as to an irrelevant matter and therefore, made an error, I am satisfied that this error was not material to his decision. The arbitrator also considered the correct question set out in PVYW, being whether the appellant induced or encouraged the respondent to engage in the soccer game. The arbitrator determined that, based upon the evidence before him, the appellant did induce and encourage the respondent to engage in the soccer game. The irrelevant consideration was not part of his reasoning for so deciding.
I am not satisfied, that but for the error, the decision of the arbitrator would have been or might have been different. As a result, no error of law is established by ground 2 and no question of law is involved.
I refuse leave to appeal on ground 2.
Ground 3
The arbitrator erred in law by making a finding of fact at [18] of his reasons that the appellant at least induced and encouraged if not required the respondent to engage in the recreational soccer game in the absence of any evidence to support such finding.
Appellant's submissions
The appellant submits that there is no evidence that the appellant either required, encouraged or induced the respondent to play soccer when he was not engaged in his actual work.
The appellant submits that the evidence before the arbitrator contained in the joint book of documents all pointed to the inescapable conclusion that:
(a)no one required the respondent to engage in a game of soccer;
(b)it was the respondent's choice to play soccer upon being invited to do so;
(c)Sodexo (engaged by Rio Tinto) organised social sport for personnel at the mine site to encourage their health and wellbeing;
(d)Sodexo encouraged personnel to get involved in the soccer game; and
(e)if there was any encouragement or inducement operative on the respondent's decision to play soccer, it came from a third party in Sodexo, not the appellant.
The appellant submits that, given an absence of evidence to support the arbitrator's finding of fact that the appellant induced and encouraged the respondent to engage in the soccer game, the decision gives rise to an error of law.
Respondent's submissions
The respondent submits that, at its highest, ground 3 merely asserts that the facts found by the arbitrator were found wrongly or on a doubtful basis or were against the weight of the evidence.
The respondent says that ground 3 involves no question of law.
Determination
The arbitrator relied upon the following evidence in finding that the appellant had induced and encouraged the respondent to engage in the soccer game:
(a)the Employment Contract which stipulated that 'It is a term of employment that [the respondent] comply with all site requirements';[11]
[11] Appeal book, page 115.
(b)clauses 6.1 ‑ 6.3 and 14.4 of the Terms and Conditions[12] which stipulate that the appellant and Rio Tinto may engage a third party such as Sodexo to promulgate and implement policies at the mine site and that those policies would be binding upon the respondent;
[12] Appeal book, page 161 and page 166.
(c)statement of Kieran Burton[13] , Production Co-ordinator with Rio Tinto on the mine site who relevantly deposed that:
[13] Appeal book, pages 105 - 106.
8.Every Friday evening, a social sport is organised for personel working on Hope Downs 1. All personnel are invited to play, with the sport being played decided on the day.
9.I understand that the Friday social sport is organised by the fitness officer who is employed through the camp contractor, Sodexo. They provide the equipment for the sports to be played.
10.Sodexo encourages personnel to be involved in the social sports events as a way of maintaining their health and wellbeing while working fly-in fly-out.
11.The Friday evening social sport is communicated with camp personnel through the Sodexo mobile application, MyVillage, and also through the use of posters placed on sign-posts around the gym and mess areas. People are also aware of the social sport event by word of mouth. On occasions, emails have been sent out to personnel advising them of the social sports games.
12.On 18 September 2020, I was taking part in the social sport. It was decided on the day that we would play soccer.
13.[the respondent] was also playing soccer that evening.
and
(d)documents produced by Mr Michael Nazareth of Sodexo as to Rio Tinto's engagement of Sodexo in providing recreational sport, including soccer, for residents at the mine site.
Even if the arbitrator made a finding of fact on a wrongful basis or against the weight of evidence, I am satisfied that the arbitrator made a finding of fact that the appellant induced and encouraged the respondent to engage in the soccer game based upon evidence to support that finding. Ground 3 does not involve a question of law.
I refuse leave to appeal in relation to ground 3.
Conclusion and final orders
Leave to appeal on each of grounds 1, 2 and 3 is refused.
I will hear the parties as to final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CB
Associate to her Honour Judge Whitby
17 MARCH 2023
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