Re Commonwealth of Australia v Roger Anthony Pearson [1981] FCA 79 (19 June 1981)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: ROGER ANTHONY PEARSON
No. G.69 of 1980
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.

CATCHWORDS

Workers Compensation - appeal from Tribunal on question of law - whether the conclusion that the respondent was injured in the course of his employment was one to which the Tribunal was entitled to come.

Compensation (Commonwealth Government Employees) Act 1971 (Cth.) ss.27(1), 95.

HEARING

SYDNEY
19:6:1981

ORDER

1. The application is dismissed.

2. The applicant pay the respondent's costs of the application.

DECISION

The respondent, Mr. Roger Anthony Pearson, a petty officer with the Royal Australian Navy, suffered a compound fracture of the lower left leg in an accident when he was skiing at Perisher in New South Wales on 10 July 1978 and sought compensation in respect of that injury from the Commonwealth of Australia ("the Applicant").

By a determination of 5 April 1979 the Deputy Chief Delegate of the Commissioner for Employees' Compensation determined, pursuant to s.20 of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"), that the respondent was on leave and injured in an activity unconnected with his employment when the accident took place.

Section 20(2)(a) provides that in determining any matter or question under the Act the Commissioner shall be guided by equity, good conscience and the substantial merits of the case without regard to technicalities.

The respondent sought reconsideration by the Commissioner and, when this was not successful, he sought reconsideration by the Commonwealth Employees' Compensation Tribunal ("the Tribunal") pursuant to s.63(1) of the Act. This section provides for reconsideration by that Tribunal or alternatively for judicial review of the determination by a prescribed court. A judicial review is in the nature of a re-hearing (s.92). Sections 80 to 89 deal with proceedings before the Tribunal.

Section 83(1) provides that the Tribunal "may exercise all the powers that are conferred on the Commissioner by this Act in relation to the determination of matters and questions".

The Tribunal determined that the respondent was entitled to compensation holding that he received his injury in the course of his employment. From this decision the applicant has appealed to this Court pursuant to s.95 of the Act which permits an appeal "on a question of law only".

Section 27(1) of the Act provides:

"If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act".

This Court is not empowered to reconsider the merits of the decision of the Tribunal but is only empowered to consider whether the Tribunal made an error of law in reaching the conclusion to which it came.

It was common ground that the only question for this Court was whether there was evidence before the Tribunal which entitled it as a matter of law to hold that the injury to the respondent took place "in the course of the employment of the employee by the Commonwealth". It was also common ground that the judgment of Stephen J. in Bill Williams Pty. Ltd. v. Williams [1972] HCA 23; (1972) 126 C.L.R. 146 at pp.158-159 provided a statement of the basic law relevant to the question of whether the accident was sustained in the course of employment.

I set out part of that judgment:

"In the present case it is only with the phrase 'in the course of employment' that the Court is concerned; that there was personal injury suffered is not in dispute and it is not contended that it arose 'out of' the worker's employment.

Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work : Kavanagh v. The Commonwealth per Fullagar J. [1960] HCA 25; (1960) 103 C.L.R. 547 at p.559. It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, 'there is nothing more in the concept than time measured by activity of a particular character': Kavanagh v. The Commonwealth per Menzies J. (1960) 103 C.L.R. at p.570. It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of

employment.

That which is incidental to a worker's work depends upon 'the sufficiency of the connexion between the employment and the thing done by the employee' which is 'a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment': Whittingham v. Commissioner of Railways (W.A.) per Dixon J. [1931] HCA 49; (1931) 46 C.L.R. 22 at p.29. It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he 'was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties': Humphrey Earl Ltd v. Speechley per Dixon J. [1951] HCA 75; (1951) 84 C.L.R. 126 at p.133: whether the accident has happened 'while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service': Pearson v. Fremantle Harbour Trust. [1929] HCA 19; (1929) 42 C.L.R. 320 at p.330."

Both parties accepted that, to use the words of Dixon J., as he then was, in

Whittingham v. Commissioner of Railways (W.A.) (supra), the question was "a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment."

I was also specially directed to the statement that the task is aided by asking whether he "was doing something which he was reasonably required, expected or authorised to do in carrying out his duties".

Deane J. in Commonwealth of Australia v. Lyon (1979) 24 A.L.R. 300 considered the nature of an appeal pursuant to s.95 of the Act and at p.301 cited Davidson v. Mould (1943) 44 S.R. (N.S.W.) 113 at p.115 and on appeal [1944] HCA 10; (1944) 69 C.L.R. 96 at pp.110 and 112, and the Department of Health v. Clancy (1961) W.C.R. (N.S.W.) 233 at p. 235 and said: "The question for me on this appeal is not whether, in my opinion that finding was the correct or preferable one. The question for me on this appeal is whether there was a proper foundation in the evidence for it". At p.305 his Honour said: "The conclusion which I have reached is that the tribunal's finding that the respondent's injury was sustained in the course of his employment was reasonably open on the evidence before it. That conclusion is sufficient to dispose of the matter in favour of the respondent".

Jordon C.J. in Davidson v. Mould (supra) at p.115 said :

"In approaching the subject, it needs to be remembered that the question whether a particular injury arose out of or in the course of employment is one of fact. In this connection, a question of law arises when it is contended on the one hand that there was no material before the Commission on which it could find that it did, or on the other that on the material which the Commission accepted and its findings on that material it necessarily followed that it did: Tompsett v. Southern Portland Cement Limited (1941) 41 S.R. 126 at 132. Between these two extremes, the question is one of degree, depending on the view taken of the relative importance and significance of the facts proved in evidence; and a decision either way by the Commission is one of fact and cannot be disturbed by this Court: Dennis v. Watt (1942) 43 S.R. 32."

To put the matter another way, before this Court can uphold the appeal it must be satisfied that the only conclusion to which the Tribunal could rightly come on the material before it was the opposite to that to which it came. The Tribunal found the following facts:

"(a) in 1978 the claimant was a Petty Officer on flight deck duties on HMAS Melbourne; the flight deck duties required him to be particularly

fit;

(b) competitive team sports are encouraged by the Navy; skiing was an inter-Service team sport sponsored and organised by the Navy leading to inter-Service competitions; at inter-Service competitions, and sometimes trials, special Service ski uniforms were worn;

(c) the claimant was a competitor at the selection trials for the Navy team which were held at Perisher Valley on 8th and 9th July 1978; Naval transport was not provided to the trials;

(d) Naval personnel were on duty; the Navy would expect anyone who wanted to get into the team to take leave to practise;

(e) the claimant was very keen to represent the Navy; he had intended to take two weeks' leave to practise before the trials but Service commitments made this impossible and he took one week before and one week afterwards; this was done with the knowledge of his superior officers on HMAS Melbourne;

(f) the claimant had skiing instructions during the preceding week from an instructor who was going to assist the Naval officers who were going to select the Naval team for the inter-Service competition;

(g) the selection trials started on 8th July 1979 with the participants taking part in an open event run by a local ski club; continued on the 9th with the contestants skiing under the observation of that instructor and the two selectors - Captain Read and Commander Hammond (then Lieutenant Commander);

(h) Commander Hammond left Perisher on the evening of the 9th without a formal decision having been made as to who was going to be selected to be members of the Navy team;

(i) Captain Read told the claimant that 'in my book he was selected' and he could expect to be in the team; Captain Read knew the claimant was remaining at Perisher on leave and told him to concentrate on clearing up some aspects of his style, in particular in relation to turning; the fact that the claimant was to be available for a further week of training was a factor in his selection;

(j) the selection was made the following day in Canberra; because Commander Hammond had a lower assessment of the claimant's ability he was placed as a reserve; however, the person he was reserve to was ultimately unavailable and the claimant would have been a member of the team if he had not had his accident;

(k) on 10th July the claimant underwent instruction with the same instructor in the morning;

(1) in the afternoon he was skiing with another member of the Naval team, who was better than him, and also his wife and he injured himself while doing a turn;

(m) he was taken to Cooma Hospital then to HMAS Penguin and has since been an instructor at HMAS Penguin;

(n) he would have continued his ski holiday whether or not he had been selected to keep himself fit and as a possible contender for future trials;

(o) it is in the nature of shipboard service that practising skiing must be privately organised and the claimant was under some obligation to train for the inter-Service competition for which he had been selected."

The Tribunal also held:

"I accept that Captain Read, in the knowledge that the claimant was staying in Perisher for a further week, told the claimant that he had to practise and that specifically he had to practise his turns. He was in fact injured while doing just what he was told to do by a senior officer. Captain Read said that, in his opinion, the claimant's selection placed him under an obligation to train for the competition and I am satisfied and find as a fact that that is how the claimant saw the matter himself."

Service in the armed forces, in my opinion, is to be looked at differently to service under an ordinary contract of employment in civil life. There is no doubt that Naval personnel are encouraged to train for active sport and to take part in active sport. In this case a number of factors have to be carefully considered. It was common ground that there was no organised practice or prescribed location for practice for Naval personnel training for service skiing events. I have cited the passage in which the Tribunal said that Captain Read told the plaintiff that he had to practise and that specifically he had to practise his turns. Captain Read was apparently a selector and candidate himself for selection. Commander Hammond was the Manager of the team. It is difficult to see any basis for finding that the statements by Captain Read to the respondent concerning practising and practising his turns were the command of a senior officer rather than advice and guidance. Had I to decide this matter as a Judge sitting at first instance, I would find that the injury to the respondent did not take place in the course of his employment. However, limited as I am to questions of law only, I do not find that the conclusion that the respondent was injured in the course of his employment is one to which the Tribunal was disentitled to come.

I dismiss the application and order the applicant to pay the respondent's costs of the application.