BLACKTOWN CITY COUNCIL v SMITH

Court of Appeal (NSW)|1996-07-16|Before: Mahoney P

The applicant arrived at work at approximately 8am and was the only employee of the respondent in her office. At approximately 8.30am she heard the sound of shouting voices in a foreign language coming from the vicinity of the solicitor's office. She then heard a woman scream. She opened the front door of her office and then heard, what she described as: 'the most horrible scream' of a woman's voice. This too she felt was coming from the solicitor's office. She ran around to that office, looked in the front glass doors and observed a man standing with his back to her wrestling with the solicitor's receptionist whose clothes were dishevelled and partially open. The woman was clearly hysterical and in great distress. The applicant immediately ran into the office as she observed the man had his right arm raised and looked like he was going to hit the receptionist in the face. She grabbed his arm and he then threw her around the room with the result that she fell to the floor and he kicked her on the right hand side on a couple of occasions. She grabbed the assailant by the foot and at about this time some assistance arrived. She realised as this point that she could not move her right arm and had pain in her ribs. The police and the ambulance arrived and she was taken to Blacktown District Hospital."

Compensation may be awarded when the worker's injury arises out of or in the course of her employment. In this case, it does not arise "out of" the employment. The worker contends that it arose "in the course of" it.

That relationship, "in the course of the employment" does not require that there be a causal relationship between the employment and the injury. Accordingly, it is ordinarily sufficient to show that the injury arose during the time when the worker was acting in her employment; ordinarily it will be sufficient if it occurred during the times when she was, as required by her employment, at the place of her employment for the purposes of it: see generally Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 483 et seq. But this does not state the matter with complete accuracy. The relationship is not a mere time relationship. Some injuries which are outside the legislation may occur within the period of time during which the employment subsists and at the place of employment: see Bill Williams Pty Ltd v Williams (1972) 126 CLR 246. It is possible for the relationship between the injury and the employment which would otherwise subsist to be broken by what the worker does or, as in the Bill Williams case was envisaged, by what another person does to or in respect of the worker while the worker is at the place of the employment and during the period of it.

There does not yet appear to have been established - if it is possible for there to be such - a single "controlling principle": 173 CLR at 489; which will determine whether the relationship exists, either generally or in relation to particular classes of cases. In Hatzimanolis this Court, following a review of the then existing High Court decisions, sought to extract a criterion or "controlling principle", the application of which to the facts will determine - or give guidance in determining - whether the instant case is within the Act. The High Court, on appeal, considered whether the state of development of the law permitted the formulation of a new "organising principle" for this purpose: at 479. It saw the then existing law as covering "many situations that were not contemplated" when the existing tests were formulated: at 479-80. It held: at 482; that:

".. 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 in the recent cases, particularly the decisions of this Court in Oliver and Danvers."

The Court said that "almost all of" the relevant decisions were cases in which the injury had been suffered, as Hatzimanolis was, during a break from or interval in the course of the employment and cases in which "the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way". But the Court held that words such as "authorised, encouraged or permitted" were not an exhaustive criterion, because they would allow "an unacceptable extension of the course of employment". The Court held the relevant distinction in such cases to lie "... not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees": at 483.

The Court took its analysis further. The Court saw injuries as "more readily" held to be compensable injuries if they occurred "in an interval or interlude occurring within an overall period of episode of work than when it has been sustained in the interval between two discrete periods of work".

"Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment."

Accordingly, the Court placed emphasis upon whether the employer had "induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way". The injury will be compensable in such a case "unless the employee was guilty of gross misconduct taking him or her outside the course of employment". The Court stressed, however, that "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 529 at 537."

These observations, though necessarily not determinative, have relevance in the present case. The present injury occurred during an otherwise uninterrupted period of the worker's employment, not during "an interval or interlude". Accordingly, stating the matter in terms of fact rather than legal onus and adapting what has been said in the cases, prima facie it should be held that the injury occurred during the course of the employment unless what occurred is such as, in the sense considered in the Bill Williams case and in Hatzimanolis, to break the relationship between the injury and the employment.

In the Bill Williams case, the question was one of law: had the trial court erred in law in holding the injury did not arise in the course of the employment. The High Court held that there was no error of law in that Court holding that an injury which had been sustained when a worker had been accosted at his place of work and had been injured whilst attempting to escape from his assailant was not an injury which arose in the course of the employment. The Court's decision was that it had been open to the Compensation Court to decide the matter either way.

In the present case, what drew the worker from her place of employment and some fifteen or twenty paces down the corridor were the screams of the woman in the solicitor's office. The issue is essentially whether what there occurred terminated the relationship with the employment. There is, in my respectful opinion, nothing in the majority judgment in Hatzimanolis or in the judgment of Toohey J: see generally at 489-491; which finally determines this matter. What is to be considered is (to adapt the language of Hatzimanolis) whether what occurred, properly characterised, terminated the relationship with the employment. Counsel referred to the decision of Dignam J of the Workers Compensation Commission in Ostergarrd vy MacDiarmid (1959) WCR 211 where a taxi driver who stopped to help bystanders free an injured driver and was injured in doing so was held not to have been injured in the course of his employment. But, as the submission suggested, the law as subsequently developed in the High Court has adopted a somewhat different approach from that then adopted.

It is, I think, relevant though not determinative to consider what, having regard to the nature or characterisation of the employment and of the events which led to the injury, would have been likely to have been the attitude of the employer to what the worker did. I do not mean by this that the matter is to be decided or even formally tested by the use of terms such as "allowed". In Hatzimanolis, the Court pointed out that such terms, though they had been used by the High Court in earlier cases to describe what was and was not within the course of employment now provide unsatisfactory tests. But if one examines or infers what was apt to be the attitude of the employer to what she did, some assistance can, perhaps, be gained in determining what was the formality or informality of the relationship existing between the worker and her employment and what was the ordinary course of the employment.

It should I think now be taken - I think the Compensation Court and this Court are entitled to know - that the general course of employment in this State is such that employers ordinarily tolerate what workers do when, for example, they temporarily cease work to smoke a cigarette outside a building, to look out of a window to watch a passing procession or look down the corridor of a building in which the place of work is situated to identify a noise or a disturbance. Thus, if the worker had merely walked to the door leading to the corridor near the place of employment to ascertain what was causing the noise, the Council would not in my opinion have taken the view that what she was doing was outside the course of her employment. Things such as that are, in the relevant sense, things which the employer ordinarily will tolerate. In this case, the worker went fifteen or twenty paces down the corridor and tried to intervene in a fracas between a woman and her attacker. This in my opinion is the kind of thing that the employer would not have seen as a departure from the course of employment, one may speculate that the employer, if present, might have sent the worker to find out what was causing the noise.

However, I prefer to decide this appeal on the basis of principle. This area of the law has, as Hatzimanolis suggests, developed far beyond what it was in earlier times. One may look to the "practical necessities and mutual expectation of the parties": Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 538. As the cases show, a worker is in the course of his employment when, on a weekend, a Sunday, the employer organises a trip and invites the worker "to come along": 173 CLR at 786; even though the trip is an "800 kilometre trip" and the injury is suffered far away from the place of employment and has no

relevance to the work tasks he performs. It was, in my opinion, proper for a judge of the Compensation Court to hold that the course of the employment extended to a worker, in the absence of the employer and so without being able to seek permission, going to attend to a cry for help a few paces away.

This case is, in detail, different from the McKenzie case, to which reference was made in this Court in Hatzimanolis, and upon which Mr Petty for the appellant relied: see McKenzie v William Holyman and Sons Pty Ltd (1939) 61 CLR 584. In that case the worker, outside the period of his employment, was holding the lamp for the purpose of assisting another employee of the employer. I do not think that that case determines the present.

In the end, I am of the opinion that what occurred did not, in the sense referred to in the Bill Williams case, take what was done outside the course of the employment. Taking modem concepts of employment to be of the kind referred to in Hatzimanolis, I am of opinion that the decision of Bishop CCJ was correct. I would dismiss the appeal with costs.

Handley JA I agree with Mahoney P. Beazley JA I agree with Mahoney P.

Appeal dismissed with costs. Counsel for the appellant: GR Petty

Solicitors for the appellant: Ebsworth and Ebsworth Counsel for the respondent: L King SC

MAHONEY P, HANDLEY and BEAZLEY JJA 16 July 1996, 12 December 1996 [1996] NSWCA 52

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