Perera and Comcare [2009] AATA 499 (2 July 2009)

Last Updated: 3 July 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 499

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3873

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ANTHONY PERERA

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

J. W. Constance, Senior Member

Date 2 July 2009

Place Canberra

Decision

The decision under review, being the decision of Comcare made on 11 August 2008, is affirmed.

.................[sgd]........................

J. W. Constance, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – place of work – Applicant injured at the entrance to the building in which he works – whether injuries sustained at his place of work – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 – Sections 4, 5A, 6

Comcare v O’Dea (1997) 150 ALR 318

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1

Re Barnard and Australian Postal Corporation [2008] AATA 507

REASONS FOR DECISION

2 July 2009 Mr J W Constance, Senior Member

INTRODUCTION

1. Mr Perera was injured at the entrance to the office building in which he works as an employee of the Australian Bureau of Statistics. He made a claim for compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988.
2. Comcare denied libility to compensate Mr Perera on the basis that at the time he was injured he was travelling between his place of residence and his place of work. Since amendments to the Act made in 2007, injuries suffered in these circumstances are not compensable.
3. For the reasons which follow the decision of Comcare will be affirmed.

FACTS

4. The following facts have been agreed between the parties. I am satisfied that the agreement was appropriate and in accordance with the documents before me and I am satisfied on the balance of probabilities of the facts set out.

5. On 17 March 2008 Mr Perera was an employee of the Australian Bureau of Statistics. On the morning of that day he travelled between his home in Canberra to his employer’s offices on the fifth floor of a building known as the Man Power Building, 33-35 Ainslie Avenue, Canberra City. For most of the journey he travelled by car.
6. At about 8.30 am Mr Perera alighted from the vehicle in Ainslie Avenue and walked towards the front door of the building. Immediately outside the front door he injured his knee. To reach the point at which he was injured Mr Perera had walked across a public footpath and then across an area adjoining the footpath. This area was within the crown lease of the land on which the building was situated, but was open to the public. It was immediately in front of the shopfronts which formed the façade of the ground floor of the building and underneath the overhang of the first floor. The entrance to the building where Mr Perera was injured was set back a few meters from the shopfronts such that as he approached the door he was walking along a short passageway. There is no dispute that the point at which Mr Perera was injured was immediately outside the entrance door but within the area of land which was the subject of the crown lease on which the building stands. After he was injured Mr Perera continued up to the Bureau’s offices on the fifth floor.

THE ISSUE

7. The only issue for determination is whether Mr Perera was at his “place of work” at the time he was injured.

STATUTORY BACKGROUND

8. For the purposes of determining the liability of Comcare to pay compensation, injury is relevantly defined to mean ‘an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”.[1] Subsection 6(1)(b) of the Act provides, in part:

Without limiting the 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, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained: ... while the employee was at the employee’s place of work ...”

This provision has become of greater significance following the amendment of the Act in 2007 to exclude compensation for injuries suffered while an employee was travelling between his or her residence and place of employment.

9. Subsection 4(1) relevantly provides:

place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.

10. Subsection 6(1A) provides that a journey from and to a place of residence begins and ends at the boundary of the land where the place of residence is situated. There is no corresponding provision as to where a journey to a place of work ends.

MR PERERA’S ARGUMENT

11. It was argued on behalf of Mr Perera that once he was within the boundary of the building in which his employer’s offices were located he was at his place of work as it would be artificial to limit his place of work to the floor of the building on which the offices were located. It was pointed out that the Act defines place of residence by reference to the boundaries of the land on which the residence is located.

COMCARE’S ARGUMENT

12. Counsel for Comcare argued that one factor to be considered is the degree of control which the Bureau exercised over the area in which the injury occurred. Counsel referred to the Explanatory Memorandum which accompanied the amending legislation, which provided that an injury suffered during a journey to work was no longer compensable. In relation to the compensation coverage of journeys to and from work the Memorandum stated:

When an employee is undertaking a journey other than a purely work-related journey, for all practical purposes the employer has no control over the circumstances of the journey or the employee’s behaviour. It is inappropriate that an employer could be liable for injuries sustained by an employee during these journeys notwithstanding that the employer fully complies with all occupational health and safety requirements in that employee’s workplace.

It was argued that it was significant in this matter that the injury occurred in an area which was accessible to the public even though the area was part of what was referred to as the “common area” in the Bureau’s lease.

REASONING

13. Although place of work is defined in the Act it is an inclusive, rather than exclusive, definition. The words do not have a special or technical meaning. In my view the determination of what was Mr Perera's place of work is a matter of fact and nothing in these reasons should be taken as an attempt to provide some form of test of general application: Hope v Bathurst City Council;[2] Comcare v O’Dea.[3]
14. I have reached the conclusion that Mr Perera had not reached his place of work at the time he was injured. It is not necessary that I determine the point at which he did arrive at that place.
15. In Mr Perera's case the following factors have brought me to this conclusion:
    • the injury occurred at a point outside the building where there was unrestricted public access;
    • there were a number of different tenants in the building;
    • the premises leased by the Bureau were on the fifth floor only;
    • the Bureau had no control of the area in which Mr Perera was injured;
    • there is no evidence that Mr Perera or any other employee of the Bureau carried out any of their duties as employees in the area in which Mr Perera was injured.

None of these factors was determinative alone.

16. I have taken into account the fact that Mr Perera was injured in a space included in the common areas referred to in the lease of the Bureau’s premises.[4] Common areas are defined in the lease to mean “all areas which are, from time to time during the Term, provided by the Landlord for common use and enjoyment by the tenants and occupiers of the Property and all persons, expressly or by implication, authorised by them.” There is nothing to suggest that a tenant is able to exercise any control over the common areas.
17. I have considered the provisions of the Act which refer to an employee’s place of residence, particularly subsection 6(1A), which states that a journey from and to a place of residence starts and ends at the boundary of the property. This subsection was in force prior to the 2007 amendments and in my opinion does not assist in determining the issue before me. There is no reason why a similar test should impliedly apply to the place of work, particularly as Parliament did not include such a provision in the amending legislation when the law as to compensation for injuries suffered during journeys to and from the place of work was changed.
18. Counsel referred me to the decision of Senior Member Penglis in Re Barnard and Australian Postal Corporation,[5] which appears to be the only decision of the Tribunal on this issue since the 2007 amendments. I have considered this decision carefully and see no inconsistency between the reasoning set out and the conclusions I have reached.

DECISION

19. The decision under review, being the decision of Comcare made 11 August 2008, is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. W. Constance, Senior Member.

Signed: ................[sgd].......................................

T. Aviram, Associate

Date of Hearing: 6 May 2009

Date of Decision: 2 July 2009

Solicitor for the Applicant: Mr B. Hatch, Pamela Coward Higgins

Counsel for the Applicant: Mr S. Pilkinton

Solicitor for the Respondent: Mr A. Schofield, Sparke Helmore

Counsel for the Respondent: Mr B. Dube

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[1] Section 5A of the Act.
[2] (1980) 144 CLR 1.
[3] (1997) 150 ALR 318.
[4] Exhibit A4.
[5] [2008] AATA 507.