Courtis and Linfox Armaguard Pty Limited [2009] AATA 809 (22 October 2009)

Last Updated: 22 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 809

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5686

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GEOFFREY PHILIP COURTIS

Applicant

And

LINFOX ARMAGUARD PTY LIMITED

Respondent

DECISION

Tribunal

G.D. Friedman, Senior Member

Date 22 October 2009

Place Melbourne

Decision

The Tribunal sets aside the decision under review and substitutes a decision that: Mr Courtis sustained an injury resulting in incapacity or impairment arising out of or in the course of employment with Linfox Armaguard Pty Ltd identified as right foot fracture with secondary deep venous thrombosis and subject of a claim for compensation dated 24 June 2008, which gives rise to an entitlement to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act). The respondent shall make the following payments to Mr Courtis: (a) weekly payments of compensation in respect of all periods where Mr Courtis’ ability to earn was less than the normal weekly earnings pursuant to section 19 of the SRC Act; and (b) the cost of medical expenses incurred in the treatment of the injury pursuant to section 16 of the SRC Act. The respondent shall pay Mr Courtis’ legal costs and disbursements incurred in the review application pursuant to section 67 of the SRC Act.

...................[signed]...........
Senior Member

COMPENSATION - sudden pain in injured hand - kicked trolley in anger or frustration - fractured foot - whether entitled to compensation - whether exclusion provision applies - whether applicant voluntarily and unreasonably submitted to abnormal risk of injury

Acts Interpretation Act 1901 s 13(3)

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A(1), 6(1), 6(3), 6A, 14(1), 14(3)

Comcare Australia (Defence) v Daniel Troy O’Dea [1997] FCA 1409

Grass v Peacock (1950) 2 WCBD (Vic.) 214

Kennedy v Telstra Corporation [1995] FCA 1640

Lees and Comcare [1999] FCA 753; (1999) 56 ALD 84

Mendez v Telstra Corporation Ltd [2005] FCA 1483; (1998) 147 FLR 394

Re Bilton and Comcare [1997] AATA 838

Re Biscardo and the Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 193

Re Grime and Telstra Corporation Limited [1994] AATA 488

Taylor v Shapley [1954] HCA 12; (1954) 90 CLR 1

The Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353

REASONS FOR DECISION

22 October 2009 G.D. Friedman, Senior Member

1. Geoffrey Courtis has been employed by the respondent for more than 30 years. In April 2008 he injured his left wrist and hand at work. On 16 June 2008 while at work he knocked his injured left hand on a trolley causing severe pain, and in anger or frustration he kicked the trolley cage, fracturing a bone in his right foot. The respondent refused his claim for compensation for injury to the foot on the basis that Mr Courtis had voluntarily placed himself in a position of abnormal risk of injury.

LEGISLATIVE BACKGROUND

2. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
   • (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

...

(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.

3. In s 4(1) of the SRC Act injury is defined as:

injury has the meaning given by section 5A.

In s 5A(1) of the SRC Act injury is defined as:

(a)...
(b) 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; or
(c)... .

4. Section 6 of the SRC Act provides:

6 Injury arising out of or in the course of employment

(1) 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:

...

(b) while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment;

...

However subsection 6(3) excludes the application of subsection 6(1) as follows:

(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.

5. Section 6A of the ARC Act is headed:

6A Injury arising out of or in the course of employment—extended operation

ISSUES

6. The issues before the Tribunal are:
   • Is the exclusion provision of s 6(3) of the SRC Act relevant to this application? If so:
   • Did Mr Courtis voluntarily and unreasonably submit to an abnormal risk of injury?

IS THE EXCLUSION PROVISION OF S 6(3) OF THE SRC ACT RELEVANT TO THIS APPLICATION?

7. Mr Courtis told the Tribunal that when he injured his foot he was working as a despatch hand at the Carrum Downs depot of the respondent, with duties that involved preparing paperwork for the delivery of coins and banknotes to and from banks, supermarkets, hotels and post offices. He also assisted with unloading trucks by using pallet handlers and forklifts. Material unloaded from the trucks was moved around the depot by hand-operated trolleys consisting of a wire cage on a metal frame with four wheels.
8. Mr Courtis said that on the day in question he was helping unload a truck during the busiest time of the day and was pushing a trolley to the storage area when the fingers of his injured left hand became twisted in the wire mesh where it became jammed against a stationary trolley. He explained that this caused immediate pain, and his reaction was to grab his injured hand or wrist. He then uttered some profanities and lashed out at the trolley, striking it with the sole of his right foot. He said that he was wearing ordinary black leather shoes with rubber soles which were an acceptable form of footwear for despatch hands.
9. Under cross-examination Mr Courtis agreed that the actions of grabbing his hand or wrist, swearing and kicking the trolley did not occur simultaneously, but nevertheless happened extremely quickly. He said that he was angry or frustrated at the pain and did not have time to think about his actions. He observed that in normal circumstances the trolley would have moved away from him after being kicked but did not because it was jammed. Mr Courtis said he simply did not have the presence of mind to act rationally in such a short time.
10. Mr Carey, on behalf of Mr Courtis, submitted that the exclusion provision of s 6(3) of the SRC Act only applies where s 6(1) applies. On that view, s 6(1) does not apply to an injury in the workplace, such as that sustained by Mr Courtis, and therefore s 6(3) has no relevance. He said that the expression ... arising out of, or in the course of, the employee’s employment ... in the definition of injury in s 5A(1) has a broad application, particularly by the use of the disjunctive or, and the breadth of the definition is not dependent upon the extension given to the meaning of those words by s 6. He said that all Mr Courtis had to show was that the injury (which clearly was not a disease) had the necessary temporal connection with employment. Temporal connection would be shown by the employee being engaged in doing something connected with employment at the time of the injury.
11. Mr Carey noted that s 6 is one of several sections that clarify the meaning to be given to certain words used in the legislation. In particular s 6 gives extended meaning to the phrase arising out of or in the course of employment which is relevant to the definition of injury (other than a disease) or its aggravation. Mr Carey submitted that s 6 is a provision that extends by statute the situations in which injury may be thought to arise in the course of employment.
12. Mr Ferwerda, on behalf of the respondent, submitted that the purpose of s 5A(1) is to define injury. On the other hand s 6 is not an extension provision: its purpose is partly to provide specific examples of situations where an injury to an employee may be treated as arising from, or in the course of, employment, and the situations set out in s 6(1) are not exhaustive. These include an injury that occurs while the employee is at the employee’s place of work, for the purposes of that employment. On that view, s 6(1)(b) applies specifically to Mr Courtis, as the foot injury sustained by him arose while he was at his place of work in the course of his employment. It also follows that s 6(3) must be considered, requiring an inquiry into whether, in the action of kicking the trolley, he voluntarily and unreasonably submitted to an unreasonable risk of injury.
13. Mr Ferwerda referred to Re Bilton and Comcare [1997] AATA 838 in which the Tribunal concluded that s 6 is not solely a deeming provision but is an omnibus provision setting out the places and circumstances in which a compensable injury can arise. He submitted that Mr Courtis cannot opt out of s 6(1) if his factual situation comes within the circumstances contained in s 6(1), and he is then subject to the possible application of s 6(3). Mr Ferwerda referred to the heading in s 6A of the SRC Act: Injury arising out of or in the course of employment-extended operation which he said by its wording strongly suggests that this section is an extension provision, whereas the heading in s 6: Injury arising out of or in the course of employment does not suggest, either impliedly or directly, that the provision is an extension of another section of the SRC Act, and supports the proposition that s 6(1) is designed to meet the vast majority of fact situations in which employees sustain injury and is consistent with the general scheme of the SRC Act.
14. Mr Ferwerda said that a temporal connection between an injury and employment is insufficient to establish a liability for compensation. Accordingly the act of kicking the trolley was not something that Mr Courtis was required to do, and took him outside the scope of the course of his employment within the common law meaning of that expression as contained in the definition of injury in s 5A(1). Consequently Mr Courtis has to rely on s 6(1) to satisfy that part of his claim for compensation, which then brings the operation of s 6(3) into consideration.
15. The Tribunal recognises that the SRC Act is to be understood as making provision for compensation where an injury results in incapacity for work and impairment (s 14). This section has been described as pivotal. In Lees and Comcare [1999] FCA 753; (1999) 56 ALD 84 the Full Federal Court discussed s 14 and emphasised the importance of the definition of injury. The concept of injury takes as its reference the definition now contained in s 5A.
16. To determine whether Mr Courtis’ incapacity is compensable under s 14 the Tribunal must decide whether his injury was sustained in the course of employment as defined in the SRC Act. The preamble to s 6(1) expands the meaning but does not limit the words arising out of or in the course of employment in the definition of injury (other than a disease). The preamble states:

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 employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained ...

17. In Mendez v Telstra Corporation Ltd [2005] FCA 1483; (1998) 147 FLR 394 Handley JA stated at 395:

Section 6(1) is in effect a deeming provision which operates among other things to deem an injury sustained by an employee while travelling between his or her place of residence and place of work to have "arisen out of or in the course of his or her employment". It does not deem the injury to have arisen in the course of the employment, but to have arisen out of or in the course of the employment. That is, either in one way or the other, not both.

The Court held that the definition of injury in s 4(1) applied to s 14(1), and that s 6(1) was a definition section that had to be read with the definition in s 4(1) rather than on its own.

18. In Comcare Australia (Defence) v Daniel Troy O’Dea [1997] FCA 1409 Northrop J stated:

In s 4 one of the meanings given to the word "injury" is "an injury suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment". These expressions, by judicial decisions, have been given a very wide meaning. Section 6 of the Comcare Act extends, by deeming provisions, the application of these expressions. Many of the other sub-paragraphs of s 6(1)(b), likewise, extend the meaning of those expressions.

19. The phrase in the course of employment was considered in Kennedy v Telstra Corporation [1995] FCA 1640 in the context of s 14. Tamberlin J stated at [29]:

The expression "arising out of or in the course of employment" is given an extended statutory meaning of s 6 of the Act ...

20. In The Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 Owen J stated at 363:

A long line of decisions shows that an accident which causes injury arises in the course of the employment only if it occurs while the employee is performing the duties which he is engaged to perform or is doing something which is reasonably incidental to the performance of those duties.

Amendments to these definitions were made from 13 April 2007 relating to the exclusionary proviso to the definition of injury concerning reasonable administrative action but did not alter the definition of injury (other than a disease).

21. An injury (other than a disease) arising in the course of employment results in compensation for incapacity by the operation of s 4 and s 5A. This is so without reference to any extension to the definition of these words contained in s 6(1). The Tribunal does not agree with the findings in Re Bilton that s 6 of the SRC Act is an omnibus section setting out the places and circumstances in which a compensable injury can arise. Consequently the Tribunal does not accept the respondent’s submission that any injury occurring at work is subject to the exclusions in s 6(3), because the result would detract from or limit the operation of arising out of or in the course of employment in the definition of injury (other than a disease). It would contradict the preamble to s 6(1).
22. The term injury (other than a disease) is defined in s 5A. Section 6 provides specific examples of circumstances in which an injury may be considered as having arisen out of, or in the course of, employment. When read as a whole, together with the preamble in s 6(1), subsections 6(1)(a) to (g) clarify situations in which an injury is taken have so arisen for the purposes of the Act. They include an act of violence (s 6(1)(a)); presence of an employee at a workplace, including during an ordinary recess (s 6(1)(b)); a temporary absence from a place of work (s 6(1)(c)); travelling under direction (s 6(1)(d)); attendance at a place of education (s 6(1)(e)); attendance for medical treatment or undergoing rehabilitation (s 6(1)(f)); or travelling for the purpose of obtaining medical treatment or undergoing rehabilitation (s 6(1)(g)).
23. In this context s 6 gives an extended meaning to the definition of arising out of or in the course of employment in situations where otherwise there might be some doubt. Not all injuries in the workplace are compensable, and the provisions of s 6(1) extend by statute the circumstances in which an injury may be thought to arise. Consequently there is no need to refer to s 6 to clarify a situation in which the circumstances are clear that a person’s injury fits the definition of arising out of or in the course of employment in the definition of injury (other than a disease).
24. In the matter under review Mr Courtis was at his normal place of work and was engaged in his usual duties when the injury occurred. The definition of injury in s 4 and s 5A of the SRC Act applies, and the injury was sustained arising out of or in the course of employment. There is no need to apply s 6(1)(b). The Tribunal rejects Mr Ferwerda’s submission that Mr Courtis cannot opt out if the factual situation comes within the circumstances contained in s 6(1), as there is no need for an extension of the definition of arising out of or in the course of employment in this instance. Similarly the Tribunal does not accept that kicking the trolley was an act that took Mr Courtis outside the scope of the course of employment within the common law meaning of injury in s 5A, so he does not need to rely on s 6(1) to satisfy that particular ingredient of his claim for compensation. The Tribunal does not accept Mr Ferwerda’s invitation to compare the headings of s 6 and s 6A to determine whether s 6(1) is an extension provision. Section 13(3) of the Acts Interpretation Act 1901 expressly states that no heading to a section of an Act shall be taken to be part of that Act.
25. For these reasons the Tribunal finds that s 6(1) of the SRC Act does not apply and s 6(3) is not relevant to the application under review. Consequently Mr Courtis is entitled to compensation pursuant to s 14 of the SRC Act.

DID MR COURTIS VOLUNTARILY AND UNREASONABLY SUBMIT TO AN ABNORMAL RISK OF INJURY?

26. Although there is no necessity for the Tribunal to consider the application of s 6(3) of the SRC Act, in deference to the submissions made on behalf of the parties at the hearing the Tribunal makes a number of findings based on the evidence.
27. In Taylor v Shapley [1954] HCA 12; (1954) 90 CLR 1 the majority in the High Court of Australia stated at 8:

The word “abnormal” seems to mean no more than unusual and a risk may be said to be abnormal where the doing of an act is, in particular circumstances, attended with an unusual degree of risk. But to say this is not to deny that a risk should also be regarded as abnormal where it is a risk which is ordinarily incidental to the performance of some act which is itself inherently dangerous.

The majority concluded that the question of whether a risk is abnormal is very much one of degree and questions of degree are usually to be decided as matters of fact.

28. On the question of the meaning of voluntarily, in Taylor the majority held at 9:

The words “voluntarily subject himself” require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury.

This was applied in Re Grime and Telstra Corporation Limited [1994] AATA 488 in which the Tribunal held at [25]:

In the context of the SRC Act, the Tribunal considers that “voluntarily”, for the purpose of subsection 6(3), requires something more than an act being done without compulsion, and that it does require the free consent of the injured employee, this necessarily encompassing that the employee fully appreciate the risk which is being undertaken.

29. In Grass v Peacock (1950) 2 WCBD (Vic) 214 the Workers’ Compensation Board of Victoria stated at 215:

Whatever view may be taken of the nature or quality of the risk actually incurred by the applicant it must be established that the applicant voluntarily submitted himself to it. This does not mean that it is sufficient simply to establish that the applicant voluntarily pursued a course of conduct which in fact in fact involved an abnormal risk of injury – it must be shown further that the voluntary submission was not only to the conduct but to the abnormal risk of injury involved in that conduct. In other words the applicant could not be said to have voluntarily submitted himself to an abnormal risk of injury unless he knew and appreciated the existence of the abnormal risk of injury to which he was about to submit himself.

30. In Re Biscardo and the Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 193 the Tribunal decided that the applicant’s voluntary decision to move residence resulted in an unusual or excessive risk of injury by aggravating a pre-existing back injury in the overall circumstances of a long trip to and from work in a motor vehicle, and therefore the risk was abnormal.
31. With respect to whether Mr Courtis unreasonably submitted to an abnormal risk of injury, in Re Bilton the Tribunal was not satisfied that the applicant’s failure to wear earmuffs while working as a baggage handler at Melbourne Airport was unreasonable during a period when the requirement to wear earmuffs was not supervised or enforced. The Tribunal also held that the risk of hearing loss was not abnormal because of the clear and regular exposure to high noise levels.
32. In the matter under review the Tribunal concludes that Mr Courtis was carrying out his duties in a normal manner by pushing the trolley at his workplace. He had been employed by the respondent for many years and was familiar with the processes and procedures in the depot. The Tribunal finds that the act of kicking a trolley in frustration did not constitute an unusual risk of injury and was not inherently dangerous (Taylor). In the context of his employment with the respondent the risk of injury was not abnormal.
33. As the final act in the sequence of events, kicking the trolley did not constitute a reflex action as would be the case where, for example, an area below the kneecap is tapped by a medical practitioner to elicit an involuntary reaction in the lower limb. However the Tribunal accepts Mr Courtis’ evidence that the act of kicking the trolley occurred following an impulsive act of anger or frustration as a result of the sudden pain, without conscious thought or appreciation of any risk he was facing. He had no time to contemplate his action, and did not exercise his free will (Re Grime). He acted instinctively. Therefore any risk of injury was not submitted to voluntarily.
34. In view of the Tribunal’s conclusion that Mr Courtis did not consciously plan to injure himself by kicking the trolley in the circumstances in which he found himself, the Tribunal does not accept that he knew of, or ought to have known, the exact position of the trolley he was pushing, or any other trolley or item that might become an obstacle to the unimpeded passage of his trolley within the depot. Therefore the Tribunal finds that he did not act unreasonably, so this element of the exclusionary proviso is not made out.
35. For these reasons the Tribunal finds that Mr Courtis did not voluntarily and unreasonably submit to an abnormal risk of injury, so the exclusion provision of s 6(3) of the SRC Act would not apply.

DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision that:
    1. Mr Courtis sustained an injury resulting in incapacity or impairment arising out of or in the course of employment with Linfox Armaguard Pty Ltd identified as right foot fracture with secondary deep venous thrombosis and subject of a claim for compensation dated 24 June 2008, which gives rise to an entitlement to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
       
    2. The respondent shall make the following payments to Mr Courtis:
       • (a) weekly payments of compensation in respect of all periods where Mr Courtis’ ability to earn was less than the normal weekly earnings pursuant to section 19 of the SRC Act; and
       • (b) the cost of medical expenses incurred in the treatment of the injury pursuant to section 16 of the SRC Act.
         
    3. The respondent shall pay Mr Courtis’ legal costs and disbursements incurred in the review application pursuant to section 67 of the SRC Act.
       

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member
(sgd) Grace Horzitski

Associate

Dates of hearing: 31 July 2009, 15 October 2009
Date of decision: 22 October 2009

Counsel for the applicant: Mr M Carey
Solicitor for the applicant: Maurice Blackburn
Counsel for the respondent: Mr J Ferwerda
Solicitor for the respondent: Frenkel Partners