Cicerkofski and Telstra Corporation Ltd [1999] AATA 19 (19 January 1999)

Last Updated: 29 January 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 19

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o N98/365

GENERAL ADMINISTRATIVE DIVISION )

Re TRAJKO CICERKOFSKI

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Mr R P Handley, Senior Member

Dr P Lynch, Member

Date 19 January 1999

Place Sydney

Decision

1. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the following directions

a) On 22 April 1997, the Applicant suffered an injury in the course of his employment which was not caused by his serious and wilful misconduct.

b) The Applicant was incapacitated for work as a result of this injury.

c) Pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), the Respondent is liable to pay compensation to the Applicant in respect of such incapacity.

d) Pursuant to s 16 of the Act, the Respondent is liable to pay compensation to the Applicant in respect of the cost of reasonable medical treatment relating to the injury.

2. The Tribunal orders the Respondent to pay the Applicant's costs of these proceedings pursuant to s 67 of the Act as set out in the Tribunal's General Practice Direction.

(Sgd) R P Handley

..............................................

SENIOR MEMBER

CATCHWORDS

COMPENSATION - injury - aggravation - incapacity - whether incapacity arose out of, or in the course of, employment - whether aggravation caused by serious and wilful misconduct of the employee - breach of Return to Work Program

Safety Rehabilitation and Compensation Act 1988 - ss 4(1), 14(3), 16, 19

Re Adams and Australian Postal Corporation (AAT 9152, 2 December 1993)

Re Virasinghe and Comcare (1997) 45 ALD 145

Murray v Baxter (1913) 13 SR (NSW) 602

Light v Mouchemore (1915) 20 CLR 647

Humphrey Earl Ltd v Speechley (1951) 84 CLR 126

Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22

Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281

Pearson v Freemantle Habour Trust (1929) 42 CLR 320

Barnes v Nunnery Colliery Co Ltd (1912) AC 44

Girlock (Sales) Pty Ltd v Hurrell (1981) 40 ALR 45

Johnson v Marshall, Sons and Co Ltd [1906] AC 409

REASONS FOR DECISION

9 January 1999 Mr R P Handley, Senior Member

Dr P Lynch, Member

1. This is an application by Trajko Cicerkofski ("the Applicant") for a review of a decision of a Senior Claims Officer of GIO Australia acting on behalf of Telstra Corporation Ltd ("the Respondent"), dated 9 March 1998, affirming a decision of a delegate of the Respondent dated 23 September 1997 that the Respondent is not liable to pay compensation in respect of the Applicant's claim for an acute exacerbation of low back pain and sciatica.

2. At the hearing, the Applicant was represented by Leo Grey and the Respondent by John Wallace, both of counsel. The Tribunal had before it the documents ("T Documents") provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The following documents were also admitted in evidence:

Exhibit A1 T Documents from a previous AAT application (N97/331)

Exhibit A2 Report of Dr I Borton dated 29 May 1997

Exhibit A3 Reports of Dr Grahame Mahony dated 4 January 1994, 15 November 1994, 27 April 1995, 27 June 1995, two reports dated 23 May 1997 and two reports dated 5 November 1998

Exhibit A4 Report of Dr V L Stockton dated 5 July 1993

Exhibit A5 Report of Dr Michael Houang dated 16 January 1996

Exhibit A6 Report of Dr Peter Kendall dated 22 May 1996

Exhibit A7 Reports of Dr Don Pryor dated 12 December 1996 and 21 May 1997

Exhibit A8 Report of Dr Luba Eikens dated 19 August 1997

Exhibit A9 A chronology of events

Exhibit A10 Three faxes indicating the jobs the Applicant performed on 22 April 1997

3. The Applicant gave oral evidence at the hearing. David Hajje, Paul Byrnes, Alan Morris, Priscilla Chapman, Nick Georgopoulos and Gary Fitton gave evidence for the Respondent.

BACKGROUND

4. The Applicant, who was born on 13 May 1964 and is aged 34, was employed by the Respondent as a Communications Officer Grade 3 most recently at the Lidcombe Line Depot. On 29 June 1993, he suffered a low back injury after lifting a pit lid. The Applicant lodged a claim for compensation which was resolved by a payment of compensation in respect of a 28% whole person permanent impairment under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). When the Applicant returned to work, it was on restricted duties.

5. On 22 April 1997, the Applicant alleged that he suffered an aggravation of his low back condition when he lifted a pit lid in the course of inspecting cables. At that time, the Applicant was supposed to be working in accordance with a Rehabilitation Plan signed on 7 March 1997 (T3) which stated "no bending or lifting". On 2 July 1997, the Applicant lodged a claim for compensation in respect of his injury on 22 April 1997 (T27).

6. On 23 September 1997, a delegate of the Respondent denied the Applicant's claim for compensation in the following terms (T36):

1. On the basis of the evidence before me I am satisfied that the said Trajko Cicerkofski did not suffer an injury that arose out of or in the course of his employment on 22 April, 1997 and accordingly the said Telstra Corporation Limited is not liable to pay compensation in respect of this claim.

2. I am also satisfied that if the said Trajko Cicerkofski had suffered an injury on 22 April, 1997 he would have been disentitled to compensation by way of Section 6(3) and Section 14(3) of the Act and accordingly the said Telstra Corporation Limited is not liable to pay compensation in respect of this claim.

7. By letter dated 2 October 1997 (T40), the Applicant sought a review of this decision. This was conducted by a Senior Claims Officer of GIO Australia on behalf of the Respondent. On 9 March 1998, the Claims Officer affirmed the earlier decision (T49). On 30 March 1998, the Applicant lodged an application for review by the Tribunal (T1).

APPLICABLE LEGISLATION

8. The Applicant claims compensation in respect of incapacity for work and medical expenses. Under s 14(1) of the Act, the Respondent is liable to pay compensation "in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment". The following definitions appear in s 4(1):

`injury' means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

...

`aggravation' includes acceleration or recurrence;

9. Section 6(1) describes circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment including when the employee is at his or her place of work for the purposes of that employment. However, s 6(3) states:

6 (3) Subsection (1) does not apply where an employee sustains an injury:

(a) while at a place referred to in that subsection; or

(b) during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

10. Liability to pay compensation may also be excluded under s 14(3):

14 (3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

11. Section 16(1) provides for payment of compensation in respect of medical expenses:

16 (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

12. Section 19 provides for the payment of compensation for injuries resulting in incapacity for work.

ORAL EVIDENCE

* Applicant

13. The Applicant said he has worked for Telecom and Telstra since 1984. He was employed as a Communications Officer Grade 3 between 1984 and 1993 doing a variety of work including installing telephones and fax machines, street work, cable work, wiring houses and other buildings, some of which might involve going into pits and into manholes because most of the cabling in Sydney is underground with, cables running through conduit pipes. The conduit pipe in the older suburbs, for example Balmain and Glebe where the Applicant used to work, were originally made of galvanised iron which tended to rust. Galvanised iron conduit is gradually being replaced by plastic conduit.

14. The Applicant said he injured his back in June 1993 lifting a pit lid at Glebe. He had been issued with a T-shaped pit key, a bit less than a metre in height, with a trigger mechanism attached to the handle so that the key could be inserted in the pit lid and the trigger mechanism would catch on to the lid for the purpose of lifting. The Applicant said pits are classified by numbers with a number 1 pit being the smallest. The older pits have concrete lids, newer ones have lighter cast iron lids, and the newest ones have plastic lids. The old lids had a key slot in the middle of the lid, whereas newer lids have key slots at either end of the lid so that the lid only needs lifting slightly and can then be slid off onto the adjacent surface. The lids are oblong in shape. A number 3 lid is about 18 inches long and 12 inches wide. A number 4 lid is a bit less than a metre long and about half a metre wide.

15. In June 1993, the Applicant injured his back because he had to lift a pit lid over a council barrier which was alongside the pit. After the accident, he had physiotherapy and traction. When he returned to work, it was on light duties and eventually a rehabilitation plan was prepared providing that he should not undertake any bending or lifting. In August 1995, the Applicant's work was changed from pillar maintenance to the insertion of updated plans into pillars. In September 1995, he undertook letter drops for two weeks and was then temporarily redeployed to cable television installation. Finally, in September 1996, the Applicant was transferred to the Lidcombe depot to do dispatch work. The Applicant said this involved sending new employees into the field to learn the job. However, at the end of 1996 the dispatch work dried up because the employees were recalled to work on cable television installation.

16. Between December 1996 and February 1997, there was almost no office work for the Applicant to perform. He spent most of his time sitting around reading magazines and doing nothing, which he felt terrible about. He had a desk in an office with David Hajje. Mr Hajje was, at that time, his supervisor, although this was later Paul Byrnes and then Gary Fitton. Mr Hajje regularly suggested to the Applicant that he should take voluntary redundancy. This was also suggested to him by Alan Morris, the Service Delivery Manager. Mr Morris told the Applicant in January 1997 that if he did not take redundancy, Telstra would set him up and he would lose his job.

17. The Applicant said he also asked his Rehabilitation Case Manager, Priscilla Chapman, for other work but she said she had nothing for him. He was then asked by Mr Byrnes whether he would like to do some "spotting". This occurred after the Return to Work Program dated 7 March 1997 (T3) was signed. The Applicant said that "spotting" is checking out a particular job to assess what needs doing. The "spotter" then reports back to the depot on what is required and who should be sent to undertake the work. The Applicant said that Mr Byrnes told him he was only to perform visual inspections with no lifting. The Applicant was not asked to discuss his undertaking spotting work with Ms Chapman, and when he was asked to do this work no reference was made to his Return to Work Program.

18. Initially when the Applicant agreed to do spotting work, Mr Byrnes sent him out on about four jobs, about one a day, which did not involve any lifting or bending. For example, he was asked to assess how a line could be connected to the exterior of a house. Mr Byrnes organised a fleet car for him when he required a car to visit a site. Usually, the address of the site would be given to him on a piece of paper and he would take this with him to make his inspection and assessment.

19. The Applicant was then told by Mr Byrnes that he would be working with Mr Fitton, the Acting Communications Officer Grade 5 for conduits, who was responsible for the digging and laying of plastic conduit pipes. The first job that Mr Fitton sent him to spot was at Mullins Street, Balmain. Mr Fitton provided him with a vehicle, a pit key appropriate for his height, and a spray paint can. He was given a piece of paper with the address and a brief description of the problem, and was told to go and check it out. He spoke to the customer who needed a telephone connection for a business. The Applicant had to ascertain how to get a telephone line into the house and had to check to see whether another cable could be fitted into the adjacent conduit. If the conduit was not big enough to take another cable, then the conduit gang would be required to lay a larger conduit to take the additional cable. The Applicant opened the pit near the house. He thinks it was a number 4 pit. This revealed that there was a plastic conduit big enough to take another cable. He phoned Mr Fitton and told him. The Applicant said it must have been obvious that in order to make such a report, he had to lift the pit lid and make an inspection.

20. Another job the Applicant remembers was at Leichhardt, where a pit which was in a driveway had to be moved for the driveway to be resurfaced. In order to assess what was involved, the Applicant had to check what was in the pit.

21. The Applicant said that when he went to do these jobs, he gave no thought to his Return to Work Program. He was just happy to do the job and did not know whether or not his return to work plan was still operational or not. He managed the two jobs just described without difficulty and did approximately another 20 jobs which did not involve lifting lids. Initially, he was supplied with a Telstra vehicle to visit the sites. Then he used Mr Fitton's car for a while because no other car was available. Finally, when Mr Fitton needed his car, for example if he had to collect his children from school, Mr Fitton asked the Applicant to use his own car and told him that he could then go straight home after completing a job. The Applicant said he did not get any travelling allowance for using his own vehicle but was happy to do this because he was able to go home directly after completing a job.

22. The Applicant kept a pit key and a pink spray can with him. The spray can was to enable him to mark surfaces such as concrete to indicate where the surface needed cutting. For example, if a new pipe needed to be laid between two pits, a concrete surface would need to be marked to indicate to the contractor where to cut the concrete to facilitate the digging of a trench for the laying of the pipe. Use of a spray can required bending so as to be near to the ground.

23. The Applicant said that of the spotting jobs prior to 22 April 1997, about eight jobs required the lifting of pit lids. He always reported back to Mr Fitton and told him his assessment of the jobs. On the afternoon of 22 April 1997, the Applicant was given three spotting jobs by Mr Fitton. Mr Fitton handed him three faxes which gave the addresses of the jobs and a brief description of what was required. Mr Fitton told him to check out the jobs and phone him later. That afternoon, the Applicant was using his wife's car. The first job, in Strathfield, involved a pile of dirt with barricades around it which had been untouched for six months. A customer owning an adjacent property had telephoned to complain (A10). The second job, in Campsie, involved the installation of a pit which had been left in a crooked state with turf removed to install the pit not having been replaced.

24. The third job was at Albert Parade, Ashfield, and involved cable which had been laid temporarily on the footpath and covered with cold mix. The Applicant found that a two-pair cable (the smallest used) had been taken from a number 4 pit along the surface of the footpath to where there was an older pit (which he thinks was a number 3 pit). However the cable had not gone into the number 3 pit but had been laid directly into the adjacent house. It was necessary for the Applicant to find out why the second pit had not been used, and to do this it was necessary to open the pit to see what sort of conduit cable was revealed. The Applicant removed the lid of the number 4 pit in front of number 40 Albert Parade by inserting the pit key into the slots at one end of the lid and lifting the lid slightly and sliding it across onto the ground beside.

25. When he came to open the lid of the number older 3 pit in front of number 38 Albert Parade, he found that the lid was an older style one made of concrete, about two inches thick and about 18 inches by 12 inches in size. The lid had a key slot in the middle. He put his pit key in the lid, lifted and immediately felt a sharp pain in his left side. The Applicant said he cursed a bit, had a quick look and discovered an old conduit pipe between the two pits, returned the lid and went back and sat in his car to recover. He said he was angry with himself. The Applicant rang Mr Fitton and told him he had aggravated his back and was going home. Mr Fitton said he was sorry about the Applicant's back and that he would see him the next morning.

26. The Applicant said he was in agony all night and, first thing the next morning, went to see his General Practitioner, Dr Borton. Dr Borton gave him five pain killing injections and put him off work for a week. She told the Applicant to go home, lie down and rest. The Applicant said he filled out a worksheet he had at home, gave it to his wife and asked her to fax it to Lidcombe depot with details of the hours he had worked. He did not do much for the next few days and about a week or so later went back to see his doctor for more injections.

27. About two days after the accident, Mr Hajje phoned him at home and asked what had happened. When the Applicant told Mr Hajje he had lifted a pit lid, Mr Hajje said he could not put that in the report because the Applicant should not have been out in the field doing this kind of work. Mr Hajje said nothing about the need for the Applicant to complete an accident report form at this time. It was his solicitor who told him to complete such a form when he saw her in June 1997.

28. The Applicant phoned Mr Fitton and asked whether he could bring an accident report form to the Applicant's house for him to complete. Mr Fitton said he did not have time, so the Applicant went into work to complete the form. He said he had to go in to work again later to complete a second form.

29. In the six months after the accident, the Applicant had physiotherapy and was taking digesics. He said he was in a lot of pain. During this time he stayed at home, pottering about, looking after his son and taking him to and from school. The Applicant found it difficult to drive the car and walking became painful after about 20 minutes. Around this time, the Applicant also had other Tribunal proceedings on foot, which were finally resolved in a settlement.

30. By the end of 1997, the Applicant found the intensity of the pain began to lessen a little. But he said he still has pain in his back and down his left leg, and his condition is still worse than it was before 22 April 1997. He continues to take digesics, depending upon the level of pain he experiences. For example, he took three digesics on the morning of the hearing and said he would take another three at lunch time to enable him to focus on the hearing and not be distracted by his pain. He is no longer having physiotherapy because this was not giving him any assistance. The Applicant said he could now possibly undertake office work again but this has not been offered to him.

31. In cross-examination, the Applicant acknowledged that before the accident on 22 April 1997, his doctors had advised he should not undertake any work involving bending or lifting. The Applicant was referred to his Return to Work Program dated 7 March 1997 (T3) which provides that he should not undertake any bending, lifting or overtime. The Applicant reiterated that from December 1996 to late January or early February 1997, he was given no work to do. He was sitting in Mr Hajje's office where he read magazines. He was suffering some back pain during this period and used to get up and go for walks around the depot in order to ease the pain. Mr Byrnes, Mr Fitton and Nick Georgopoulos would all have been aware that he had a back problem.

32. The Applicant agreed that he had discussed the possibility of a voluntary redundancy package with Mr Hajje. He had indicated that he was interested in knowing what sort of package might be available and, in February 1997, he wrote to Mr Morris to find out how much money would be involved. The Applicant denied he had been informed on 21 April 1997 that he would not get a voluntary redundancy package because the union would not approve a package at a time when he was involved in proceedings before the Tribunal.

33. The Applicant said he was aware of the weight of pit lids. He said a number 3 pit lid weighed about 20 kilograms and a number 4 pit lid a few kilograms more. He said he had not undertaken any field work between June 1993 and when he started doing spotting in early April 1997, and he had not had a pit key in that period. The Applicant repeated that it was Mr Fitton who gave him both a pit key and a spray can.

34. The Applicant was aware that spotting might involve lifting pit lids, but he said nothing about this because after sitting around in the office for two months doing nothing, he was happy to do the job. The Applicant said he never raised with Mr Fitton why he gave the Applicant a pit key. He thought if he said no to the spotting work allocated to him by Mr Fitton, he would have to go back to sitting in the office doing nothing.

35. The Applicant said he only did three or four jobs for Mr Byrnes and was happy to do more jobs for Mr Fitton. Mr Georgopoulos only sent him out to do one job, for which Mr Georgopoulos lent him his car, but he used the pit key and spray can which he had been given by Mr Fitton. The Applicant acknowledged that when he first started doing the spotting work for Mr Byrnes, Mr Byrnes told him at least twice not to do any lifting. Mr Fitton gave him the same sort of work. However, the Applicant thought Mr Fitton expected him to look in a pit if necessary. Otherwise, why would he give him a spray can and pit key?

36. In the period December 1996 to April 1997, Mr Byrnes was his supervisor but Mr Hajje usually signed everything.

37. The Applicant said that six months after the accident, his symptoms began to lessen. He agreed that by December 1997, he could probably have undertaken some office work but he followed the advice of Dr Mahony, who advised him not to work. Dr Mahony has told him he is a borderline case for surgery. The Applicant said he would like to go back to work. He does not like sitting around at home. However, the Respondent has not contacted him. The Applicant said he had expressed an interest in re-training, for example to enable him to undertake drafting work. He asked Mr Morris about this in January 1997 when they took his Telstra vehicle off him. This was the occasion when Mr Morris told him that if he did not take a voluntary redundancy package, he would be set up.

* David Hajje

38. Mr Hajje said he has been employed by the Respondent for about nine years and is currently an Acting Level 7 Supervisor. He said he had known the Applicant since about the beginning of 1997 when Mr Hajje began working at the Lidcombe depot. Mr Hajje was the Applicant's supervisor for about three or four months while the Applicant was doing office duties and the Applicant shared an office with him.

39. Mr Hajje was referred to the Return to Work Program (T3) which he confirmed he had signed as the Applicant's supervisor on 7 March 1997. However, Mr Hajje said that his signature was one of convenience because Mr Byrnes was really the Applicant's supervisor and he was not present in the office on that day. Mr Hajje agreed that as the Applicant's nominal supervisor, he should have checked whether the Applicant was complying with his Return to Work Program. Mr Hajje did not allocate work to the Applicant. This was the responsibility of Mr Byrnes. Mr Byrnes was also Mr Hajje's senior officer. Mr Hajje was aware that the Applicant had no work to do and confirmed that in early 1997 when the Applicant shared an office with him, the Applicant sat around reading magazines most of the time. Mr Hajje acknowledged that he might have discussed the possibility of a voluntary redundancy package for with Applicant on average about once a week.

40. Mr Hajje said he did not take signing the Return to Work Program very seriously because he was not responsible for the Applicant's work. He was aware the Applicant was restricted to office work. Mr Hajje did not take any interest in what the Applicant was doing and was not aware who was actually giving him work. Spotting was not Mr Hajje's responsibility in terms of supervision. He has never done any spotting himself but, as far as he knows, it just involves observation, although he acknowledged it could involve looking in a pit. Mr Hajje knew Mr Byrnes had asked the Applicant to do spotting work.

41. Mr Hajje said he was unaware initially that the Applicant was away on compensation leave after an accident. Mr Hajje thought the Applicant was on sick leave. He learned the Applicant was, in fact, on compensation leave when he received a call from Sue Cavka, a Compensation Officer, when he was driving in his car from Lidcombe towards Bankstown (T8). Mr Hajje said he had assumed the Applicant was away on sick leave and it had not crossed his mind that he had injured his back in the course of spotting duties. After speaking with Ms Cavka, Mr Hajje phoned the Applicant to find out what had happened. Mr Hajje said he did not recall saying to the Applicant that the Applicant should not record on his claim form that he was doing spotting duties at the time at the time of his injury.

* Paul Byrnes

42. Mr Byrnes said he had worked for Telecom and Telstra for about 34 years and is presently the Sydney Cable Tunnel Manager. Mr Byrnes knows the Applicant from working at the Lidcombe depot where he was the Applicant's manager. Mr Byrnes said he would usually sign the Applicant's Return to Work programs but was unable to remember doing this in the presence of the Applicant.

43. Mr Byrnes was aware the Applicant had been sitting in the office reading magazines for several months before Mr Byrnes allocated him spotting duties. Mr Byrnes said there was no clerical work available at the Lidcombe depot, although the Applicant occasionally answered the phones.

44. Mr Byrnes said when he allocated the Applicant spotting work, he told the Applicant he was not to lift anything and that the spotting was to be visual only. Mr Byrnes explained to the Tribunal that spotting was adopted as a work practice in 1996, the purpose being to ascertain what a particular job required or to check whether a job had been started or completed properly. He said spotting did not normally involve looking into a pit. A visual inspection was usually all that was necessary. Mr Byrnes could not recall how many spotting jobs he gave the Applicant but said it was more than a dozen including jobs given to him by other supervisors.

45. Mr Byrnes said Mr Hajje was the Applicant's immediate supervisor who allocated him work and Mr Byrnes was Mr Hajje's supervisor. Mr Byrnes became aware that Mr Hajje had signed the Applicant's Return to Work Program as his supervisor on the same day that this occurred. Mr Byrnes said he had been absent from the office during the first part of the day and Mr Hajje had signed the form in his absence. Mr Byrnes acknowledged that Mr Hajje should have ensured the guidelines in the Return to Work Program were followed. Mr Byrnes said he had not seen the Applicant's Return to Work Program either in March or April 1997 and he had no knowledge of its contents. He had spoken to Ms Chapman, the Applicant's Rehabilitation Case Manager, about the Applicant, but not about his doing spotting work.

46. Mr Byrnes said spotting jobs would come through to Lidcombe from four customer service officers, often by fax. Commonly, the fax would include only a brief description of a problem with the address to be visited. He acknowledged it was often not possible to know what work was required. Mr Byrnes said he usually had no direct involvement in the allocation of spotting jobs. Although he acknowledged spotting could require lifting or bending, he had told the Applicant that he was not to do any lifting. Mr Byrnes said it was quite possible that the Applicant might have been allocated spotting work by Mr Fitton, who was one of the programmers. Mr Byrnes said he would have told Mr Fitton that the Applicant was not to do any lifting or bending but Mr Byrnes could not actually recall telling Mr Fitton this. Mr Byrnes was not aware of what spotting jobs the Applicant might have been sent out to do. This would have been a matter for Mr Fitton and Mr Byrnes would not have checked.

47. Mr Byrnes said he had not since checked whether the Applicant did in fact lift a pit lid although he had heard this suggestion. He acknowledged there was a risk that the Applicant might go beyond visual inspections but Mr Byrnes had tried to avoid this by not giving the Applicant a pit key or any tools. He was not aware the Applicant had sometimes used his own car to undertake spotting jobs. Mr Byrnes said he had had no contact with the Applicant since April 1997.

* Alan Morris

48. Mr Morris said he has worked for Telecom and Telstra for 28 years and has been Service Delivery Manager since October 1996. In this position, he had responsibility for four depots including the Lidcombe depot. Mr Morris first met the Applicant in late 1996 when he visited the staff at the Lidcombe depot. At this time, he became aware the Applicant was on a rehabilitation program.

49. Mr Morris said he had an interview with the Applicant in January or February 1997. The first part of the interview was conducted in the presence of two union delegates and concerned taking the Telstra motor vehicle allocated to the Applicant away from him because this was for the purpose of field work which the Applicant was not, at that time, undertaking. There had also been an allegation of a breach of the rules concerning where the vehicle was parked. After the first part of the interview, Mr Morris asked the union representatives to leave in order to discuss personal issues with the Applicant. Mr Morris discussed the possibility of the Applicant taking a voluntary redundancy package. Mr Morris acknowledged that he told the Applicant that there was a disciplinary matter pending against the Applicant and that if he did not take the voluntary redundancy package, the matter would proceed and could lead to disciplinary action. After the meeting, the Applicant wrote Mr Morris a letter dated 24 February 1997 expressing interest in taking voluntary redundancy. Mr Morris initiated an investigation of a voluntary redundancy package for the Applicant and sent the documentation to the union for approval. However, they said the redundancy should not proceed because of the Applicant's pending compensation hearing in the Tribunal.

50. Mr Morris could not recall a telephone conversation with Ms Cavka about the Applicant on 20 May 1997. On reading Ms Cavka's record of conversation (T19), he recalled he had doubted there was an incident in which the Applicant injured himself because he was aware the Applicant had been told not to undertake any lifting or bending and had not been provided with a pit key for the purpose of his spotting work.

51. Mr Morris was aware that in early 1997 the Applicant was only carrying out mundane office duties. He thought the Applicant was answering the phones and was involved in dispatch work. However, Mr Morris acknowledged the Applicant had told him that he was bored. Mr Morris said the Return to Work Program dated 7 March 1997 (T3) would have been shown to him and normally he would sign such plans. He acknowledged that spotting work was not covered by the Program which merely indicated office duties. Mr Morris suggested that there might have been a verbal alteration of the Program but was not aware of whether or not the Rehabilitation Case Manager had authorised such an alteration.

52. Mr Morris acknowledged that after he became aware of the alleged incident, he did not check on the particular spotting jobs undertaken by the Applicant, nor whether those jobs involved the lifting of pit lids. Mr Morris said there were no records kept of particular jobs undertaken following spotting. He did not speak to the Applicant about the spotting jobs but said that the Applicant had been told not to lift. Mr Morris was not aware the Applicant had alleged that he was instructed to lift pit lids. Mr Morris had discussed the matter with Mr Georgopoulos and Mr Fitton in his office. It was at this meeting when Mr Morris had asked Mr Fitton to make a brief statement about what instructions he had given to the Applicant, and it was as a result of this request that Mr Fitton made the statement dated 22 May 1997 (T20).

* Priscilla Chapman

53. Ms Chapman is a Rehabilitation Case Consultant who said she has worked with Telecom and Telstra for nearly nine years. She had had dealings with the Applicant since June 1993, 90% of those dealings being amicable. The Applicant's rehabilitation programs have excluded bending and lifting and, in early 1997, the Applicant was to undertake clerical duties at the Lidcombe depot. Ms Chapman said the Return to Work Program dated 7 March 1997 (T3) was signed by the Applicant in her presence. Her practice is to explain the terms of a program to an employee in the presence of the person's supervisor before they all sign. Ms Chapman said the handwriting on the Program was hers. She said Mr Hajje did not tell her that he was not really the Applicant's supervisor and was only signing the Program in the absence of Mr Byrnes. She confirmed there would have been an earlier program with similar restrictions that the Applicant should not be involved in any bending or lifting.

54. Ms Chapman said her practice is to phone employees who have such programs from time to time to find out how they are going. She would normally phone the Applicant about once a month. However, she did not speak to him between the time of signing the Program on 7 March 1997 and the accident on 22 April 1997. She did not become aware of the Applicant's injury until 7 May 1997, when she was contacted by the compensation section. Ms Chapman had not been aware that the Applicant had been asked to do spotting work and said she was very concerned that the Return to Work Program had not been complied with. She said she had asked Mr Morris why the plan had not been complied with but he had not given her a reason.

55. Ms Chapman said rehabilitation plans were intended to be taken seriously and a change in duties should only follow a new agreement being completed. She would not expect a current Return to Work Program to be altered without her being consulted. Ms Chapman said she had been out on three spotting jobs, none of which had involved lifting. The practice of spotting had started at the time cable television was introduced. She was not consulted about the Applicant doing spotting work and she would have wanted to ensure that he was not being asked to do spotting involving lifting or bending before approving a program for him involving spotting.

56. Ms Chapman did not recall the Applicant saying he had nothing to do. She thought he was undertaking dispatch work. However, she said a voluntary redundancy package for the Applicant had been discussed with Mr Morris and Ms Cavka on 21 April 1997.

* Nick Georgopoulos

57. Mr Georgopoulos said he has worked for Telecom and Telstra for over nine years. He first met the Applicant around March 1997 when Mr Georgopoulos was office coordinator at the Lidcombe depot. Mr Georgopoulos was aware of the restrictions on the Applicant undertaking any lifting or bending, of which he had been told by the Assistant Service Delivery Manager, Mr Byrnes.

58. Mr Georgopoulos said in March 1997, he gave the Applicant a spotting job to do, which he agreed might have been in Chapel Street, Marrickville, although he had no recollection of this. At that time, Mr Georgopoulos was supplied with a Telstra vehicle, probably a Commodore, which he might have lent to the Applicant to undertake the job. He said the job would have been only a visual inspection. He never gave the Applicant any tools or a pit key to perform that job, although he acknowledged in cross-examination that there could have been pit keys and a few tools in the back of his car. He did not recall giving any instructions to the Applicant to check a conduit in a pit. Mr Georgopoulos said if he had asked the Applicant to do this, the Applicant would have had to lift a pit lid and Mr Georgopoulos denied he would have asked the Applicant to do this.

59. Mr Georgopoulos said he had never seen the Applicant's Return to Work Program - he was just made aware of the restrictions on the Applicant's work by Mr Byrnes. When Mr Georgopoulos asked the Applicant to undertake the spotting job for him, he went directly to the Applicant to give him the job. He said he was not aware of any record of a job at Chapel Street, Marrickville, although if the spotter had reported in that work was required, then there would have been some paperwork generated by this.

* Gary Fitton

60. Mr Fitton said he has worked for Telecom and Telstra for just over 16 years but is being made redundant on 23 December 1998. Mr Fitton said after the Lidcombe depot was closed, he was transferred to Bankstown. Whilst at the Lidcombe depot, he was supervising the conduit gang. He recalls the Applicant coming to work at the depot in the latter part of 1996 on light duties as part of a rehabilitation program. The Applicant was not permitted to undertake any bending or lifting because of his back condition.

61. Mr Fitton described "spotting" as inspecting a job site to appraise what work is required for a particular job: for example, whether only a joiner is needed to connect a cable or whether a conduit gang is also needed to dig a trench and install a new plastic conduit pipe or perhaps to replace an old galvanised iron conduit pipe. Mr Fitton said whilst he was at Lidcombe, he had not used anybody else to do spotting work prior to the Applicant. He allocated spotting jobs to the Applicant to get him out of the depot where was just sitting at a desk reading magazines. Mr Fitton said he never provided the Applicant with a pit key and he did not know how the Applicant had obtained one. However, it would have been easy for him to obtain one since there were always pit keys in the depot vehicles. None of the spotting jobs allocated to the Applicant required him to use a pit key. Generally, it was sufficient for the Applicant to prepare a rough sketch of what was required. Mr Fitton said that he had given the Applicant a spray paint can so that, for example, he could mark footpaths and driveways so that a concrete cutter could cut the required areas before the conduit gang started work. Mr Fitton never required the Applicant to lift a pit lid.

62. Mr Fitton did not recall sending the Applicant to undertake jobs in Leichhardt, Balmain or Ashfield. He was shown the three faxes (A10) which had details of the three spotting jobs the Applicant was to undertake on the afternoon of 22 April 1997. Mr Fitton said he would commonly see five or six of these faxes every day and would have seen in total at least 1,000 of these jobs so that he was unable to remember the details of specific spotting jobs. He confirmed that he would have given the relevant fax to the Applicant if he had asked him to do a spotting job. Mr Fitton was asked to look at the fax in relation to 38 Albert Parade, Ashfield. He said there was nothing in the fax to indicate the need for a pit inspection. The description of a temporary cable suggests an external visual inspection was all that was needed, and that there was no need for a pit inspection.

63. Mr Fitton said the Applicant was allocated a vehicle to perform spotting jobs. This would have been either a spare one in the yard or, on some occasions, Mr Fitton's work vehicle, which he was also permitted to use privately. Mr Fitton usually finished work at 3.50 pm but occasionally he finished earlier at 3.00 pm or 3.30 pm and he would sometimes collect his children from school at 3.20 pm. He told the Applicant that the Applicant could use his own car in the afternoon if he was undertaking a spotting job near his home so that he could go home directly afterwards.

64. It was Mr Byrnes who asked Mr Fitton to find work for the Applicant because the Applicant was sitting around reading magazines all day. Mr Byrnes did not discuss the Applicant's Return to Work Program or his duties or restrictions with Mr Fitton although Mr Fitton was aware the Applicant was not to undertake any bending or lifting. Mr Fitton acknowledged that he was not aware of the extent of the limitations on the Applicant's bending and that the use of a can of paint to spray markings, for example on a pavement, would require him to bend in order to hold the can near the ground.

65. Mr Fitton said the Applicant used to report back after a spotting job either by phoning him or by bringing in a sketch plan of the work required when he next came into the depot. Mr Fitton had no recollection of the Applicant phoning him on the afternoon of 22 April 1997 to say that he had injured his back and that he was going home, nor of whether the Applicant had said he had opened a pit lid.

66. Mr Fitton acknowledged that in older suburbs such as Balmain, where there is still extensive use of galvanised iron conduits, it would be a waste of time to send a spotter if the spotter could not inspect the inside of a pit to see if a conduit needed replacing. With respect to the spotting job in Albert Parade, Ashfield, this would have required someone to do a full report on what needed to be done. Mr Fitton admitted that if he had gone to do the spotting job himself, he would have lifted the number 3 pit lid to make sure what the problem was and why the temporary cable had been laid along the top of the footpath. However, he said this was something that the Applicant should not have done because he had been instructed not to lift.

67. Mr Fitton was referred to the Applicant's claim for rehabilitation and compensation dated 2 July 1997 (T27). He said he did not recall completing the section of the form on the third page (T27, p 37), in particular answering question 6 "Are you satisfied the information on the claim form is accurate?" by ticking the "yes" box. By doing so, he was agreeing that the Applicant's answer to question 17 was accurate. In answer to question 17, in which the Applicant described the sequence of events leading to the injury, the Applicant wrote:

I arrived at the job, I opened the 4 pit (to see why the temporary 2 pair was coming out of the 4 pit. I walked down to the 3 pit right outside the premises and opened it. That's when I felt a sharp pain in my back.

68. Mr Fitton said the Applicant might have told him he lifted the pit lid on this occasion but said he had no knowledge of the Applicant doing this previously. Mr Fitton did not recall whether he had specifically told the Applicant not to lift pit lids. Mr Fitton acknowledged he had given a statement to Ms Cavka, dated 22 May 1997 (T20), after speaking with Mr Byrnes.

69. Mr Fitton was referred to his statement made on 15 July 1997 and signed by him on 5 August 1997 (T31, p 63). In particular, he was referred to the penultimate paragraph on the second page of the statement where he said he first knew about the alleged incident on 22 April 1997, when the Applicant called him that afternoon to advise that he had a pain in his back and was going home. Mr Fitton said he was not responsible for supervising the Applicant nor for checking his time sheets. However, he said he had reported the incident to Mr Byrnes. Mr Fitton said even though there were only six or seven people working in the depot, he did not contact the Applicant after that afternoon incident to see how he was.

70. Mr Fitton said the depot maintained a diary of jobs undertaken. This would ordinarily be an entry of a couple of lines to record the job completed and would not include details of what was done in completing the job or, for example, whether it was necessary to look in a pit. Mr Fitton did not know where the job diaries for Lidcombe would be since the Lidcombe depot has now closed. With regard to any faxes received in requiring a spotting job, he said that these faxes would not normally be kept and, indeed, would be thrown away after the inspection had been carried out.

SUBMISSIONS

* Applicant

71. With respect to the Applicant's medical condition, Mr Grey said there was no issue that what happened on 22 April 1997 resulted in a continuing incapacity for the Applicant. Mr Grey noted that of the contentions raised by the Respondent, the Respondent had not pressed the first contention which was that no incident had occurred on 22 April 1997. The main issue in dispute between the parties, therefore, was that the Applicant was acting outside the course of his employment when he was injured on 22 April 1997.

72. Mr Grey submitted the Applicant was, however, carrying out a task allocated to him by his supervisor which was for the benefit of his employer. The Applicant could not, therefore, be said to be acting outside the course of his employment. It was part of the Applicant's role as a spotter to inspect each job and ascertain what was to be done. Mr Grey said it beggared belief that no more than a visual inspection was expected in circumstances where this was clearly not enough. It must have been obvious from the reports on the spotting jobs which the Applicant had undertaken, that he was sometimes lifting pit lids. Someone should have been alert to this and should have asked the Applicant about it. If the possibility that he was lifting pit lids was ignored, this could be taken to be a tacit approval of the Applicant's actions, so that it could not be argued that he was acting outside the course of his employment. To be acting outside the course of his employment, the Applicant must have been involved in some sort of misconduct. This was not the case here. All that had occurred was that the Applicant was being over-zealous in performing his job and in doing so, had been careless or negligent with regard to his back condition.

73. Mr Grey noted that spotting work was not an approved activity under the terms of the Applicant's Return to Work Program (T3). Mr Grey said neither Mr Byrnes nor Mr Fitton had examined the Return to Work Program and Ms Chapman, the Applicant's Rehabilitation Case Manager, had not been consulted about the Applicant's doing spotting work. Mr Fitton had admitted giving the Applicant a spray paint can so that he could mark surfaces to indicate, for example, where any concrete cutting needed to be done. Mr Grey asked why the Applicant was given a spray paint can if he had been told not to bend.

74. With regard to the relevant authorities, Mr Grey referred the Tribunal to the Tribunal decision in Re Adams and Australian Postal Corporation (AAT 9152, 2 December 1993). In that case, Deputy President Blow cited the relevant authorities on what constitutes serious and wilful misconduct. He emphasised (at para 41) that such conduct will be:

deliberate and not merely a thoughtless act done on the spur of the moment, and only if it is accompanied by an appreciation of the risk which is involved in it.

75. Mr Grey also referred to the case of Re Virasinghe and Comcare (1997) 45 ALD 145, where the Tribunal held that the phrase "serious and wilful misconduct" went beyond negligence. Serious and wilful misconduct is more than mere misconduct, something which had been emphasised by the NSW Supreme Court in Murray v Baxter (1913) 13 SR (NSW) 602 at 605. Mr Grey also cited the decision in Light v Mouchemore (1915) 20 CLR 647 at 651 where the High Court had sought to distinguish between something done recklessly or negligently which the employee was employed to do, and the doing of a thing altogether outside and unconnected with his employment. Mr Grey said that in the Applicant's case, he was doing something within the scope of his employment. The question was whether it was reasonable in the circumstances for the Applicant to find out what was in the pit. Once again, Mr Grey emphasised that although the Applicant's conduct may have been careless and negligent, it did not constitute misconduct. The Applicant had wanted to do the job properly and get the job done in a way which he thought would be of benefit to his employer.

76. Mr Grey said in considering all the circumstances of the case, it should be remembered that there had been a breach of the Applicant's Return to Work Program by the Respondent, as a result of which the Applicant was exposed to a situation where injury could occur.

77. It should also be remembered that, in the first half of 1997, the Respondent did not accept that the Applicant had a significant, permanent impairment of his back. At this time the Respondent contended that the Applicant's impairment should be assessed at less than 10%, a relatively minor problem. That the Applicant was permitted to bend and use a spray can indicated the Respondent was not seriously concerned for the Applicant's welfare. It was not until 12 December 1997 that the Respondent agreed to a determination under s 42C of the AAT Act that the Applicant had a 28% permanent whole person impairment in respect of his back.

78. Mr Grey submitted it was implausible that the Respondent had no records of the sort of jobs undertaken following spotting of the kind the Applicant did on 22 April 1997. Even if such records were not kept for any length of time, the question should be asked as to why, in May 1997, when this incident was being investigated, the Respondent did not check for any relevant documentation.

79. With regard to Mr Wallace's comment that it was surprising the Applicant still had copies of the three faxes from 22 April 1997, Mr Grey contended that this was not surprising given this was the last day on which the Applicant worked. It was also on the contrary, not surprising that the Applicant remembered the details of individual spotting jobs since these were important for him after he had spent several months reading magazines. The Applicant's recall should be contrasted with that of the Respondent's witnesses who, despite the fact that this incident had been investigated within a few weeks of its occurring, appeared to have very little memory of what had actually happened. This was of particular significance in the case of the more junior employees who were aware that their involvement in such an incident could lead to serious disciplinary consequences.

* Respondent

80. Mr Wallace noted that the injury which the Applicant had suffered in June 1993 had involved lifting a pit lid. Following this accident, the Applicant was on a Return to Work Program and, by the end of 1996, there had been a longstanding relationship between the Applicant and his employer over the restrictions on what the Applicant could do. One of the problems faced by the Respondent was that, by early 1997, there was no useful light work which the Applicant could do within the Respondent's organisation. Clearly, the Applicant was not happy sitting around reading magazines, and Mr Byrnes thought the Applicant's undertaking spotting work seemed an appropriate role. Mr Wallace contended there were contradictions between the Applicant's oral evidence and the medical evidence, especially that of the Applicant's treating specialist, Dr Mahony, whose reports suggest that the Applicant should not even be able to bend and use a spray can.

81. Mr Wallace suggested that the Tribunal should adopt a step-by-step approach in considering this matter. The first step was to consider the definition of injury in s 4(1) of the Act. Paragraph (c) of this definition includes "an aggravation of a physical or mental injury" being an aggravation that arose out of or in the course of the employee's employment. The first issue, therefore, is whether the aggravation which led to the Applicant's incapacity arose out of, or in the course of, his employment.

82. Mr Wallace said the Respondent no longer sought to rely on s 6(3) but instead preferred to rely on s 14(3), contending that the Respondent was not liable in respect of the Applicant's incapacity. Section 14(3) states that "[c]ompensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted". The second issue for the Tribunal is, therefore, whether the Applicant's aggravation of his injury was caused by his serious and wilful misconduct.

83. Mr Wallace submitted that guidance could be obtained from the relevant precedents on the interpretation of serious and wilful misconduct but that care should be taken in examining the legislative provisions which were the subject of those earlier cases since, in some cases, the legislative prescription was different. For example, some of the old legislation deals with serious or wilful misconduct, rather than serious and wilful misconduct. Mr Wallace referred the Tribunal to the High Court decision in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 and, in particular, to the judgment of Dickson J at 134, where he considered what activity is to be regarded as within the course of a person's employment. He stated:

The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties.

84. Similarly, in that decision McTiernan J (at 137) states the course of a person's employment "includes the doing of whatever is incidental to the performance of the work".

85. In an earlier decision, Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, Dickson J stated:

There can no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service.

86. Mr Wallace said the Applicant's evidence was that he was fully aware that lifting a 20 kilogram pit lid could result in further back injury. Moreover, Mr Byrnes had on more than one occasion told him not to lift pit lids, only weeks before the accident, and all the other witnesses had denied ever asking him to do so. With respect to the three spotting jobs on the afternoon of 22 April 1997, Mr Wallace said these jobs were so minor that it was unreasonable to expect any documentation to have been maintained. Looking at the facts in relation to the spotting job at Albert Parade, Mr Wallace noted that in the relevant fax (A10) there is no mention of joints or conduit suggesting there was no need for the Applicant to have inspected the inside of the two pits. It was obvious from the temporary cable along down the footpath that the conduit pipe was unable to accommodate that cable. Otherwise, a temporary cable would not have been used in this way.

87. Mr Wallace said the Respondent did not deny that the Applicant's Return to Work Program had not been followed and that his rehabilitation case manager, Ms Chapman, had not been consulted. However, Mr Byrnes' obvious intention was to provide the Applicant with some useful work which was within his capacity when there was nothing useful the Applicant could do within the office.

88. Mr Wallace said it had not been suggested that the Applicant did any bending which aggravated his back. Mr Wallace also denied that the fact that the Applicant had been issued with a spray can necessarily suggested the Applicant was required to bend. What is at issue is the lifting of the pit lid. Noting that the Applicant had had a three year history of not lifting, Mr Wallace questioned how it could possibly be of benefit to the Respondent for the Applicant to have lifted a pit lid risking further injury to his back which could give rise to a significant cost to the Respondent. The Applicant had admitted to a full appreciation of the risk involved in his lifting a pit lid. In Adams v Australian Postal Corporation (supra), Deputy President Blow stated (at para 41):

It is well established by authorities relating to physical injuries that, at least in such cases, for conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of injury, "it must be deliberate and not merely a thoughtless act done on the spur of the moment, and it must be accompanied by an appreciation of the risk which is involved in it".

89. With regard to the Applicant's Return to Work Program dated 7 March 1997, Mr Wallace said the breach of such a program was only one element in determining whether or not the Applicant had been acting in the course of his employment and, in the present case, was not a particularly useful one given that there were no office duties for the Applicant to perform.

90. In conclusion, Mr Wallace submitted that the aggravation of the Applicant's injury had been caused by his serious and wilful misconduct. The Applicant had appreciated the consequences of what he was doing when he lifted the pit lid causing the injury to his back.

CONSIDERATION OF LAW AND FINDINGS

91. The first issue for the Tribunal is whether the Applicant suffered an "injury", as defined in s 4(1) of the Act, "arising out, or in the course of" his employment. "Injury" is defined to include an aggravation of an existing injury, provided, once again, that the aggravation "arose out of, or in the course of, that employment". "Aggravation" is defined as including "acceleration or recurrence".

92. At the hearing, the Respondent did not dispute that the Applicant suffered a further injury to his back on 22 April 1997 when he lifted a pit lid. On 12 December 1997, the Tribunal made a determination under s 42C of the AAT Act, by consent of the parties, that the Applicant had a 28% whole person permanent impairment in respect of his lower back as a result of an injury on 29 June 1993 when the Applicant lifted a pit lid. The Applicant submitted reports from his general practitioner, Dr Borton, dated 29 May 1997 (A2), and his treating specialist, Dr Mahony, for example dated 5 November 1998 (A3), in support of his contention that the incident on 22 April 1997 caused an aggravation of his existing back condition. The Tribunal therefore finds that the incident on 22 April 1997 caused an aggravation of his existing condition. However, at issue is whether the aggravation arose out of or in the course of his employment.

93. Although ss 6 and 6A of the Act contain specific extensions to the meaning of "course of employment", the ordinary meaning of the phrase is not explained. Mr Wallace referred the Tribunal to a number of decisions where the courts have discussed the meaning of the phrase "arising out of or in the course of a person's employment": Humphrey Earl Ltd v Speechley (supra); Pearson v Freemantle Habour Trust (1929) 42 CLR 320; Whittingham v Commissioner of Railways (supra); Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281. The Tribunal notes that Dixon J was a participant in all four decisions and McTiernan J in the latter three decisions. The decisions follow a similar approach. In Henderson, Dixon J said (at 294):

To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty is in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work.

94. In Humphrey Earl Ltd, Dixon J said (at 134):

The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties.

In the same case, McTiernan J said (at 137):

To be in the course of his employment, the acts of the workman must be part of his service to the employer ... It includes the doing of whatever is incidental to the performance of the work.

95. With these prescriptions in mind, the Tribunal considered whether the Applicant was acting in the course of his employment when he lifted the pit lid on 22 April 1997. In late March and early April 1997, the Applicant had been allocated "spotting" work by his supervisor Mr Byrnes. Even though Mr Hajje signed the Applicant's Return to Work Program dated 7 March 1997 (T3), clearly Mr Hajje was not the Applicant's supervisor. After a few spotting jobs had been directly allocated to the Applicant by Mr Byrnes, Mr Fitton took over this role, and it was he who allocated the Applicant the three spotting jobs on the afternoon of 22 April 1997.

96. The evidence of Mr Byrnes and Mr Fitton indicates that the purpose of "spotting" is for an employee to make an inspection at a particular site to ascertain what work is required. The "spotter" is expected to report back to the depot on the nature of the work required so that arrangements can be made to send appropriate Telstra personnel or contractors at the appropriate time.

97. Spotting may require the employee to make an exterior visual inspection of the site - for example to identify how a telephone line might be run into the upper floor of a building for a telephone or fax connection. Alternatively, it may require the employee to inspect cables or conduit pipes (through which cables pass) and the connections in such cables or conduit pipes. This will often entail the spotter lifting a pit lid to ascertain the state of the existing cables and conduit pipes: for example, whether galvanised iron conduit pipes are still being used, which need replacing by plastic pipes, or whether an existing conduit pipe is large enough to accommodate additional cables passing through it or, if not, what diameter conduit pipe should be used to replace it.

98. The Applicant had been allocated spotting work by his supervisor, Mr Byrnes. Because of the Applicant's existing back condition, Mr Byrnes, in allocating the Applicant this work, on two occasions acknowledged by the Applicant, told the Applicant not to lift pit lids in the course of what should have been only an exterior visual inspection. After the initial few jobs directly allocated by Mr Byrnes, the allocation of jobs was assumed by Mr Fitton. His evidence was that he was aware of the Applicant's back condition and consequent restrictions on lifting and bending and that none of the spotting jobs allocated by him to the Applicant required him to lift pit lids. However, Mr Fitton admitted that when allocating spotting jobs, it was not always possible to tell from the limited information supplied, for example from a fax (A10), the extent of the inspection required. Thus, for a spotting job to be properly carried out, it might require the lifting of a pit lid even though this might not be apparent from the limited information initially available.

99. In the Tribunal's view, the lifting of pit lids is clearly incidental to the performance of a purely visual exterior inspection. Thus, the Applicant was acting in the course of his employment when, on 22 April 1997, he lifted a pit lid when undertaking a spotting job. However, by lifting the pit lid, the Applicant ignored the instruction of his supervisor, Mr Byrnes, the restriction set out in his Return to Work Program (T3) - "no bending or lifting", and the limitations imposed by his back condition which had been addressed both by the Applicant and his employer since the accident in June 1993.

100. At the hearing, Mr Wallace chose to rely on s 14(3) of the Act and not s 6(3) in seeking to exclude liability for the Respondent. Section 14(3) provides that "compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted". The second issue for the Tribunal is whether by ignoring the restrictions on lifting, the Applicant was engaging in serious and wilful misconduct.

101. In Light v Mouchemore (supra) at 651, the High Court, in discussing serious and wilful misconduct, quoted with approval Lord Atkinson in Barnes v Nunnery Colliery Co Ltd (1912) AC 44 at 49:

a distinction must, I think, always be drawn between the doing of a thing recklessly or negligently which the workman is employed to do, and the doing of a thing altogether outside and unconnected with his employment. A peril which arises from the negligent or reckless manner in which an employee does work he is employed to do may well be held in most cases rightly to be a risk incidental to his employment.

102. In Murray v Baxter (supra) at 605, the NSW Supreme Court emphasised the distinction between "misconduct" and "serious and wilful misconduct". In Girlock (Sales) Pty Ltd v Hurrell (1981) 40 ALR 45 at 47, Mason J said:

The phrase `serious and wilful misconduct' (in s 7(2)(c) of the Workers' Compensation Act 1912 (WA)) connotes a far more grievous breach by the worker than does the phrase `substantial default or wilful act'.

103. In Re Adams and Australian Postal Corporation (supra) Deputy President Blow said:

for conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of injury, "it must be deliberate and not merely a thoughtless act done on the spur of the moment, and it must be accompanied by an appreciation of the risk which is involved in it".: Hills v Brambles Holdings Ltd [(1987) 4 ANZ Ins Cas 60-785, Green CJ in the Supreme Court of Tasmania]

104. As is apparent from Senior Member Eyre's decision in Re Virasinghe and Comcare (supra) at 169, Green CJ was drawing on Lord Loreburn LC's comment in Johnson v Marshall, Sons and Co Ltd [1906] AC 409 at 411:

the word "wilful" ... imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment.

105. Was the Applicant's injury caused by his serious and wilful misconduct? The Tribunal finds the Respondent was not complying with the Applicant's Return to Work Program (T3) when it allocated the Applicant spotting work. Spotting work was not included in the office duties anticipated by the Program. Any variation or amendment of that Program should have been in consultation with, and with the approval of, the Applicant's Rehabilitation Case Manager, Ms Chapman, who, in evidence, expressed her concern that the Program had not been complied with.

106. The Tribunal recognises that Mr Byrnes was probably trying to do the Applicant a favour because the Applicant was bored with sitting around reading magazines, there being no useful office work he could do. However, by allocating the Applicant this work, Mr Byrnes was placing the Applicant in a situation where he was at greater risk of not complying with the restrictions on his work activities. Mr Fitton acknowledged he gave the Applicant a spray can to enable him to mark surfaces such as concrete, to indicate where particular work needed to be done. Use of a spray can in this way requires the person holding the can to bend in order to be close enough to the surface of the ground to mark the surface with clear lines.

107. The Tribunal was unable to make a conclusive finding as to who provided the Applicant with a pit key, but considers it not improbable that he obtained a pit key from Mr Fitton who may have forgotten. Clearly, the Applicant had one on 22 April 1997, and he told the Tribunal he still has the key at home standing behind a cupboard. The Applicant says Mr Fitton gave him the key. Mr Fitton denies this. In the Tribunal's view, the Applicant's recollection of events is more likely to be accurate than Mr Fitton's. Mr Fitton, who admitted to allocating at least 1,000 spotting jobs at Lidcombe, had no recollection of any particular spotting job he had assigned to the Applicant. Whilst this might be understandable, the Tribunal found it implausible that Mr Fitton would have no recollection of the Applicant phoning him after the accident on the afternoon of 22 April 1997, especially given the investigation of the accident which took place in the ensuing months. Moreover, if the Applicant had undertaken about eight pit inspections in the course of performing the spotting jobs allocated by Mr Fitton, it is likely that the Applicant's reports back to the depot would have contained some indication that he was lifting pit lids by virtue of the information in his reports.

108. In the Tribunal's view, it was almost inevitable that, in the Applicant's circumstances, he might be tempted to lift a pit lid. The Applicant impressed the Tribunal as a conscientious and honest worker who was keen to perform a useful job and one which was of benefit to his employer, in particular, so that he would not have to return to non-existent office duties. At the time of the accident on 22 April 1997, the Applicant was aged 32. It is well known that younger people with back disabilities have greater difficulty accepting the limitations imposed by their condition. It is common for such people to try and do more than they should and to regret it afterwards. This was the case with the Applicant. He said when he sat in his car after the accident, he was angry with himself for what he had done.

109. The Tribunal concluded the Applicant had been negligent in disregarding his own welfare in lifting the pit lid on the afternoon of 22 April 1997 and, in doing so, was guilty of misconduct in so far as he was ignoring an instruction by his supervisor Mr Byrnes not to lift. However, in the Tribunal's view, given the nature of the spotting work allocated to the Applicant, it was not serious misconduct and it was not deliberate, but rather a thoughtless act by a youngish man who wanted to do more than he should. Thus, s 14(3) does not apply in the Applicant's case.

110. At the hearing, the Respondent did not dispute that the Applicant suffered an incapacity for work as a result of the injury on 22 April 1997, nor was any question raised about the cost and reasonableness of any medical treatment obtained by the Applicant in relation to the injury. The Tribunal therefore relies on the evidence of the Applicant's treating doctors, Dr Borton and Dr Mahony, that the Applicant was incapacitated for work as a result of his injury on 22 April 1997. Thus, the Tribunal determined that the Respondent is liable to pay compensation to the Applicant in respect of incapacity for work under s 19 of the Act and in respect of the cost of reasonable medical treatment under s 16.

I certify that this and the 35 preceding pages are a true copy of the decision and reasons for decision herein of Senior Member R P Handley and Dr P Lynch.

Signed: .....................................................................................

Associate

Dates of Hearing 8 & 9 December 1998

Date of Decision 19 January 1999

Counsel for the Applicant Leo Grey

Solicitor for the Applicant Colin Daley Quinn

Counsel for the Respondent John Wallace

Solicitor for the Respondent Sparke Helmore