Wayne Gregory v Comcare Australia [1997] FCA 4 (15 January 1997)

CATCHWORDS

WORKERS' COMPENSATION - injury sustained by member of RAAF at function in honour of his departure from RAAF - whether injury arising out of, or in the course of, his employment - injury occurring in interval between two discrete periods of work.

WORDS AND PHRASES - "injury arising out of, or in the course of ... employment".

Safety Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 5(2), s 14(1), s 16

Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473

Commonwealth of Australia v Lyon (1979) 24 ALR 300

WAYNE GREGORY v COMCARE AUSTRALIA

No QG 111 of 1996

Cooper J

Brisbane

15 January 1997

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No QG 111 of 1996

On appeal from the Administrative Appeals Tribunal General

Administrative Division constituted by Mr D W Muller, Senior Member

BETWEEN:

WAYNE GREGORY

Applicant

AND:

COMCARE AUSTRALIA

Respondent

JUDGE MAKING ORDER: Cooper J

WHERE MADE: Brisbane

DATE OF ORDER: 15 January 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondent's costs of and incidental to the appeal to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No QG 111 of 1996

On appeal from the Administrative Appeals Tribunal General

Administrative Division constituted by Mr D W Muller, Senior Member

BETWEEN:

WAYNE GREGORY

Applicant

AND:

COMCARE AUSTRALIA

Respondent

CORAM: Cooper J

PLACE: Brisbane

DATE: 15 January 1997

REASONS FOR JUDGMENT

Introduction

This is an application by way of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 21 June 1996.

The applicant broke his leg during a social soccer match which took place at a party held in honour of his discharge from the RAAF. He applied for compensation in respect of his injury and, by letter dated 20 September 1994, a delegate of Comcare informed him that liability had been admitted for his injury. On 6 February 1995 a different delegate of Comcare revoked the decision of 20 September 1994 and determined that compensation was not payable in respect of the applicant's injury. The Tribunal affirmed that determination.

The question of law raised by the appeal is whether, having regard to the findings of fact made by the Tribunal, the Tribunal erred in concluding that the applicant's injury did not arise out of, or in the course of, his employment.

Facts

The Tribunal's decision was based on the following findings of fact.

The applicant enlisted in the RAAF on 12 October 1989 and became a member of the Fire Section. On Sunday 7 August 1994, two days before his discharge from the RAAF, the applicant attended a farewell barbecue held in his honour at the Airmen's Club at RAAF Base 1 CAMD.

The applicant first heard about the proposed farewell one week before through Corporal Attenborough, who told him that the Fire Section was organising a farewell barbecue and that one of the RAAF cooks would be preparing some salads. A notice was placed on the Fire Section notice board on or about Wednesday 3 August 1994. The notice invited section members and their families to attend the farewell. Food and alcohol were to be supplied by members of the Fire Section.

On Friday 5 August 1994 the applicant noted that he was rostered on for duty for Saturday 6 August and Sunday 7 August. When the applicant raised the matter with Sergeant Rogers, Sergeant Rogers told him that he (Rogers) would authorise a staff change for the Sunday so that the applicant could attend the farewell.

The farewell barbecue started at about 11.00 am on Sunday 7 August 1994. All members of the Fire Section (except one who was on holidays) attended. Those present ate, drank and socialised. At about 3.00 pm it was decided to play a game of soccer. The game was played on an adjacent rugby field which is part of the RAAF Base. The teams were made up of RAAF members, their spouses and children. There was no referee. During the course of the game the applicant broke his right tibia and fibula. He was taken to hospital by a civilian ambulance.

Prior to Sunday 7 August 1994 the applicant and his family had moved from the Base to a motel and had made their furniture and belongings ready for transport to Townsville on Monday 8 August. Their belongings were in fact transported on 8 August.

The Tribunal also found the following in relation to the nature of functions held by RAAF personnel and the organisation of the particular function in question.

The holding of "hails" for members taking up new postings and "farewells" for members being discharged is a common occurrence. "Hails" tend to be formal official functions when senior service members are involved. "Farewells" are not official functions and are not funded by the RAAF. "Farewells" are usually held in the mess on the Base, but are occasionally held at civilian venues away from the Base.

While there is no official RAAF policy concerning "farewells", they are an accepted part of life in the RAAF - they are part of the RAAF ethos. A member would be expected to attend a "farewell" organised for him, especially one organised during normal work hours. Similarly, whilst attendance by a departing member's comrades is not compulsory, failure to attend would be regarded by the organisers as bad manners. At an organisational level, the RAAF is ambivalent about the desirability of holding "farewells". Some senior officers see such functions as being generally good for the promotion of morale and camaraderie among RAAF members.

The Airmen's Club is located on premises owned and maintained by the Department of Defence. All personnel at the rank of Corporal or below automatically become members of the Club. The Club is run by a committee, membership of which is voluntary. The Club is self-funded, self-operated and staffed by volunteers. The Club receives no financial assistance from the Department of Defence. Any social clubs associated with the various sections are separate entities and are not related to the Airmen's Club.

Part of the premises on which the Airmen's Club operates includes a beer garden in which a barbecue area is located. If a member wishes to use the barbecue facilities he or she contacts one of the committee members and requests permission to do so. The Club does not take bookings for particular functions. If a function is being held in the Club, other members are not prevented from attending the Club.

Statutory Provisions

An "employee" for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") includes a member of the Defence Forces (s 5(2)). Section 14(1) of the Act provides :-

"14(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."

Section 16(1) and s 16(2) are also relevant :-

"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.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment."

"Injury" is defined in s 4(1) to mean, so far as is relevant, :-

"...

(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."

The Tribunal's Decision

After setting out the relevant facts, which I have recited, the Tribunal cited and quoted from a number of authorities, including Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473, and concluded :-

"10. In Mr Gregory's case the farewell party and the injury he sustained occurred outside ordinary working hours. It did not occur during a lunch break.

11. The fact that the injury occurred on the grounds of the RAAF Base does not automatically make it something which occurred in the course of employment. The party was private. It could have been held at a civilian venue such as a restaurant or a public park. It was not an official function.

12. I regard the fact that Mr Gregory felt obliged to attend the party as not particularly significant. If a civilian friend had organised a birthday party in his honour at a civilian venue, he would have felt a similar obligation to attend. It is more a question of good manners than a question of official obligation to the RAAF.

13. There is no doubt that such functions are regarded by some of the RAAF administrators as being good for morale. They probably also regard social events involving RAAF personnel in birthday parties, christenings, weddings, bucks' parties and excursions as being good for morale and camaraderie. Any employer would be loath to restrict or prohibit such activities among his/her employees. If an employer prohibited the use of his/her facilities by employees for social events, the employer would run the risk of being regarded by the employees as miserly and not worthy of loyalty. Tacit approval, permission or even encouragement by employers for their employees to enjoy each other's company should not necessarily leave the employer open to a claim such as this for compensation consequent upon an injury arising out of a social event.

14. In my view the soccer match participated in by Mr Gregory, his friends, their wives and their children went way beyond anything that could be said to have arisen out of Mr Gregory's employment with the RAAF. It is certainly unfortunate that he broke his leg but it is an injury for which workers compensation is not payable."

Submissions on the Appeal

Counsel for the applicant submitted that, having regard to the findings of fact made, the only conclusion reasonably open to the Tribunal applying the test as stated by Deane J in Commonwealth of Australia v Lyon (1979) 24 ALR 300 at 303, was that the applicant's injury arose out of, or in the course of, his employment. Having determined that it did, it was submitted there was nothing about the applicant's participation in the soccer match which would make the injury suffered by him during that match an injury falling outside of the definition of "injury" in s 4(1) of the Act. Any finding by the Tribunal to the contrary, it was submitted, was a finding which was not reasonably open to the Tribunal.

Conclusions on the Appeal

In Hatzimanolis, the High Court was concerned with the New South Wales equivalent of the definition of "injury" in s 4(1) of the Act. Mason CJ, Deane, Dawson and McHugh JJ, in a joint judgment, considered (at 478 - 479) that what had been absent from the earlier cases in this area and what was now required was an "organising principle" to assist a tribunal of fact in determining whether an injury was sustained in the course of employment. After reviewing the authorities, including Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 and Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126, their Honours said (at 482) :-

"Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something `in order to carry out his duties' at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers."

(The reference to Oliver and Danvers is a reference to the decisions in The Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 and Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529).

Their Honours noted (at 482) that a "striking feature" of the recent cases which had held that an injury occurring in an interval between periods of actual work was within the course of employment was that the employer had authorised, encouraged or permitted the employee to spend the time during that interval in a particular place or in a particular way. However, their Honours thought it would be an "unacceptable extension" of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work in a particular place or in a particular way. Their Honours continued (at 483) :-

" ... Thus, an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor, although the case would come within such a formulation. The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.

The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterization of the period or periods of work of those employees. For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality."

Accordingly, their Honours concluded (at 484) :-

" ... it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment `and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen' Danvers (1969) 122 CLR at p 537."

The judgment of the majority in Hatzimanolis did not, in any view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth of Australia v Lyon 24 ALR at 303 - 304). What their Honours did in Hatzimanolis was provide to tribunals of fact reasoned guidance, by way of a "unifying principle", in determining whether that temporal connection exists in circumstances where the injury in question is sustained during an interval between periods of actual work. Their Honours concluded that the distinction between a compensable and a non-compensable injury occurring in such an interval, where the employer had induced or encouraged the employee to spend the interval at a particular place or in a particular way and the injury was sustained at that place or while the employee was engaged in that activity, was to be drawn by a characterisation of the period or periods of work of the particular employee. That characterisation highlights the temporal nature of the connection between the place or activity at or during which the injury occurred and the employment.

The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because, putting aside injuries suffered while travelling to and from work and the like which are specifically provided for under the Act (see s 6), the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained.

The example given by the majority in Hatzimanolis of the employee who is encouraged by his or her employer to see a doctor after working hours illustrates the point. Whilst it might be said that an injury sustained by the employee while visiting the doctor is in some way causally connected to his or her employment, there can be no question of a temporal connection.

That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or activity and the employment.

In the instant case, it is clear from the Tribunal's reasons, and in particular from paragraph 10 quoted above, that the Tribunal found that the applicant's injury occurred in an interval between two discrete periods of work, rather than in an interval during an overall period of work, such as a lunch break or the kind of interval with which the High Court was concerned in Hatzimanolis. The Tribunal did not find nor, in my view, could it properly have found on the evidence before it, that the farewell barbecue at which the applicant was injured was an interval occurring during an overall period or episode of work. There was no basis for the Tribunal to find that the applicant's period of employment in the RAAF at the Base was an undertaking extending over a number of daily periods of work so as to constitute an overall period or episode of work.

Having so found, the Tribunal considered whether there was anything in the nature or circumstances of the farewell barbecue and the soccer match which indicated a sufficient connection with the applicant's employment so as to make the injury sustained by the applicant a compensable one. The Tribunal concluded that there was not. Counsel for the applicant urged me to conclude that the Tribunal's finding in this respect was one which was not reasonably open to it. I am not persuaded that it was not a finding reasonably open to the Tribunal. The question for the Tribunal was a question of fact and inherently one of degree. There was evidence before the Tribunal to support the finding. Indeed, having regard to the principles enunciated by the majority in Hatzimanolis and to the Tribunal's finding that the applicant's injury occurred during an interval between two discrete periods of work, a finding to the contrary would have been more readily susceptible to challenge as being one not reasonably open.

In my view, there is no error of law disclosed in the decision of the Tribunal. The appeal will be dismissed with costs.

I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of his Honour Justice Cooper.

Date: 15 January 1997

Associate

Counsel for the Applicant: A J Moon

Solicitors for the Applicant: Connolly Suthers by their town agents McInnes Wilson & Jensen

Counsel for the Respondent: C E Holmes

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 18 November 1996

Place of Hearing: Brisbane

Date of Judgment: 15 January 1997