Solicitors for appellant: Palios Meegan Nicholson

JUDGE1 DOYLE CJ

1. By s100(3) of the Workers Rehabilitation and Corporation Act ("the Act") the appeal is limited to a question of law.

The question of law is whether, in the circumstances of the case, the Tribunal erred in law in deciding that a disability did not arise out of or in the course of employment, and so was not a compensable disability.

The circumstances in which that question arises are as follows. On 19th August 1992 the worker made a claim for compensation under the Act, asserting that on 11 August 1992 he had sustained a compensable disability described as "pain in chest". The Workers Rehabilitation and Compensation Corporation ("the Corporation") exercised its power under s53(2) of the Act to require the worker to submit to an examination by a medical expert, Mr E T Eriksen. Mr�Eriksen arranged for the worker to undergo bone scans and a serological investigation at Calvary Hospital on 30th October 1992. As the worker was walking out of Calvary Hospital, having gone there for a second time later in the day to collect the results of these tests, he slipped and injured his left knee. On 9th November 1992 the worker claimed compensation, asserting that the knee injury on 30th October was a compensable disability. On 18th November 1992 the Corporation rejected the claim based on "pain in chest", and on review a Review Officer confirmed that rejection. That decision was not challenged.

The Corporation also rejected the claim based on the knee injury on the grounds that it did not arise out of or in the course of the worker's employment. The worker applied for a review of that decision. The review was conducted by the same Review Officer concurrently with the review of the decision to reject the claim based on "pain in chest". The Review Officer held that the worker's attendance at Calvary Hospital was reasonably incidental to his contract of employment because it was required by the Corporation in connection with the investigation of a "reasonable claim alleged to have arisen out of that employment". On appeal from the Review Officer the Tribunal set aside that decision and re-instated the Corporation's decision. The Tribunal said: "The worker did not attend at the Memorial Hospital (it seems this should be Calvary Hospital) at the request of his employer. He did so at the request of the Corporation. He did not leave work to make the attendance. He did not intend to return to work after it was completed. The only connection between his employment and his attendance was that his attendance was in relation to an incident that the worker asserted was work related, albeit that ultimately that has been found not to be the case. Although the employer clearly had an interest in the outcome of the tests and the fate of the worker's claims, in my view, the relationship between the incident and the worker's employment is too tenuous to be said to be in the course of employment."

The Tribunal also held that the case did not fall within s30(3)(e) of the Act, which provides that the employment of a worker includes: "... (e) attendance by the worker at any place ... for the purpose of - (i) obtaining a medical report or certificate in connection with a compensable disability:"

The Tribunal's reason for so concluding was that because the "pain in chest" was not a compensable disability, the case did not fall within this provision.

The worker, in this appeal, challenges both aspects of the Tribunal's decision.

Section 30 of the Act as it stood at the relevant time provided as follows:- "(1) Subject to this Act, a disability is compensable if it arises from employment.

(2) A disability arises from employment if - (a) in the case of a disability (not being a secondary disability or a disease) - it arises out of or in the course of employment; or (b) in the case of a disability that is a secondary disability or a disease

  (i) the disability arises out of employment;
or
  (ii) the disability arises in the course of employment and the
  employment contributed to the disability.

(3) Subject to subsection (4), the employment of a worker includes -

(a) a journey between the worker's residence and place of employment (whether to or from the place of employment); (b) attendance by the worker at the worker's place of employment on a working day - (i) before commencing work for the day; (ii) after concluding work for the day; or (iii) during any authorised break from work; (c) where the worker has attended at the place of employment on a working day - a temporary absence from the place of employment during a meal break or other authorised break from work; (d) attendance by the worker at an educational institution in accordance with a legal obligation or at the request or with the approval of the employer for the purpose of receiving instruction or training and any journey for the purpose of such an attendance at the institution between the worker's resident or place of employment and the institution (whether the journey is to or from the institution); (e) attendance by the worker at any place (which may include the

worker's place of employment) for the purpose of - (i) obtaining a medical report or certificate in connection with

a compensable disability; (ii) receiving medical treatment for a compensable disability; (iii) participating in a rehabilitation program provided to the worker; (iv) seeking or receiving compensation in connection with a compensable disability, and any journey related to such an attendance between that place and the worker's residence or place of employment (whether the journey is to or from that place)."

"Compensable disability" means a disability that is compensable by virtue of section 30.SECTION 30(3)(e)

It is convenient to deal first with the argument that the case falls within s30(3)(e).

Counsel for the appellant argued that the expression "in connection with" was deliberately chosen instead of the word "for", and that the chosen expression requires only a loose link to a compensable disability. It was argued that the present case falls within that expression because, for the Corporation to obtain a medical report while investigating whether the "pain in chest" was a compensable disability was to obtain a medical report in connection with a compensable disability. Counsel vacillated on the issue of whether it was essential that the medical report be sought by the Corporation exercising statutory powers, or whether a medical report obtained by the worker in the worker's own interests was likewise obtained in connection with a compensable disability.

The drafting of s30(3)(e) does not suggest to me that "in connection with" was intended to extend the range of situations covered beyond situations linked to what is in fact a compensable disability. A more obvious way of doing so would have been to use an expression such as "an asserted compensable disability". Apart from that, it seems to me that the reference to "a compensable disability" provides an anchor to which sub-clause (i) is firmly attached. The intention appears to be that the report must have a connection with an actual compensable disability. The report need not assert that the disability is compensable - it might be concerned solely with treatment of the worker, but it must relate to or be connected in some way with a compensable disability. I consider that the drafting of sub-section 30(3)(e) does not assist the worker's contention.

In my opinion, it is not surprising that Parliament should restrict the reach of the provision in this manner. There is a clear policy choice here. The course of employment could be specified to include attendances related to asserted or claimed compensable disabilities or specified only to include attendances related to actual compensable disabilities. Each approach is a rational one. I can see no reason to regard the conclusion that Parliament chose the latter course as an unlikely one.

It is true that the equivalent provision in the 1971 Workmen's Compensation Act was clearer. Section 9(2)(e) of that Act included within the course of employment an injury which occurred:- "(e) while the workman is in the course of a journey between his place of abode or place of employment and any other place for the purposes of -

(i) obtaining, in connection with any injury for which he has received compensation or for which a claim for compensation has been admitted, a medical certificate; or (ii) receiving in connection with any such injury medical, surgical, surgical or hospital advice, attention or treatment, or while the workman is in attendance at any such place for any

It is to be noted that that provision also used the expression "in connection with". It can also be seen that the expression "compensable disability" might have been regarded as a simple means of conveying the meaning of the longer expression "any injury ... has been admitted". I consider that if the intention was to widen this provision to include a claimed or asserted compensable disability, clearer wording would have been used.

For these reasons, in my opinion, the present case does not fall within s30(3)(e), because the attendance at Calvary Hospital was not for the purpose of obtaining a report in connection with a compensable disability. The report was in connection with a disability that was found to be not compensable.SECTION 30(2)(a)

The main contention for the worker was that the disability arose "out of or in the course of employment".

This expression has a long history in workers' compensation law in this State and elsewhere. The expression does not identify a precise concept. It is clear that the course of employment extends beyond performance of the actual work or duties that a worker is employed to do, and beyond things that the worker is obliged to do. The end result is, as Dixon CJ said in Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29 that:- "... the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment."

In Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 at 294, Dixon CJ said: "Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer's premises and work as an ordinary member of the public is another matter of weight ..."

These words have often been used by courts as a guide to the application of the statutory provision, despite the fact that the introductory words identify a specific factual setting.

This approach was approved by the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1972) 173 CLR 473 at 479, but it is again to be noted that Dixon CJ and the Court in Hatzimanolis were dealing with an injury sustained during intervals between work.

In Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1966) 122 CLR 529, Barwick CJ said (at 536) that the approach in Henderson "should be applied liberally and practically".

It is also clear, as the High Court indicated in Hatzimanolis, that the approach of the court must be informed by an understanding of contemporary practices of workers and employers, and the contemporary understanding of what is incidental to employment.

In Hatzimanolis the High Court paid particular attention to injuries occurring between periods of actual work. The majority said (at 483 - 484): "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 within such a period occurs as an interlude or interval within a 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 ... Accordingly, 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."

A reading of Hatzimanolis makes it plain that it is more difficult to conclude that something which occurs, not in an interval within a working period, but outside or after working hours, occurs within the course of employment. However, there is no rigid rule, and the discussion of Danvers in Hatzimanolis makes it equally plain that something which occurs quite outside working hours may be "within the current conception of the course of employment" (CLR at 483).

And one must always bear in mind, as the majority said in Hatzimanolis (at 484):- "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".

Bearing these principles in mind, I turn to the facts of this case.

At the time of the injury the worker was absent from work, having been off work since the incident of chest pain which he experienced on 11 August 1992. He was, as already stated, at Calvary Hospital for the purposes of submitting to an examination required by the Corporation under s53(2) of the Act. Failure to submit to the examination entitled the Corporation to reject the claim which the worker had made based on the chest pain.: s53(3)(b).

There is no suggestion that the employer required the worker to attend at Calvary Hospital. Nor, as far as I can tell, would his failure to submit to the examination have any significant impact upon the employer's interests. Nevertheless, in a general way one would say that co-operation by a worker with the Corporation is in the employer's interests and would be encouraged by most employers.

Oddly enough, I can find no provision in the Act which requires an employer to allow a worker to be absent from work when that is required for the purposes of a medical examination by the Corporation. Nor is there any provision which requires an employer to exercise its powers over workers in a manner which will assist the Corporation.

The injury was not, I consider, sustained in an interval occurring during a period or episode of work. It was sustained during a period when the worker was absent from work due to sickness. At the time of the injury he had been absent from work for about three months. At the time of the injury he was not doing anything connected with his work as a concrete labourer. So this is not a case of the type envisaged in the passage from Hatzimanolis set out above. This injury did not occur during a break in the working day or working hours.

But that is not the end of the matter. In Hatzimanolis the court made it clear that an injury sustained after the day's work has ceased may be a compensable injury. It did so by reference to the decision in Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 where a railway worker was sleeping at night in a van provided for his accommodation near his work site when the van caught fire and the worker died. His death was held to be compensable, even though it occurred after the day's work had ceased and while the worker was not doing anything linked to his work duties. As to injuries which do not occur during intervals in the working day or working hours, the majority in Hatzimanolis said (at 483): "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 days 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 characterisation 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. ... 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 discreet 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."

The question therefore arises of whether the period of work of the worker in this case can be characterised as extending to include time spent by the worker to attend at a medical examination in connection with a claimed compensable disability or indeed an actual compensable disability. In other words, is this part of the course of employment without resort to section 30(3)(e)? I return to the facts.

The worker was complying with a requirement by the Corporation in its capacity as the person liable to pay the compensation being claimed by the worker, as the person to whom the claim was made, and as the person by whom the primary decision as to entitlement was to be made. He was doing something (complying with the Corporation's requirement) which one would assume the employer would expect him to do, authorise him to do (if that arose) or require him to do (to the extent that it could, by giving an instruction) because of the nature of the employer's interest in the proper working of the scheme of the Act.

It is also relevant that the statutory scheme relating to workers' compensation is these days a normal aspect of employment, by which I mean that an almost universal aspect of employment is the entitlement of workers to compensation in respect of disabilities arising out of or in the course of employment, and a statutory scheme relating to that entitlement. The entitlement to compensation can today be regarded as a normal aspect of employment.

But in the end one must return to the basic concept, the course of employment. When the worker sustained his injury he was not doing something in an interval within a working period or an overall period of work. In the ordinary sense of the word, his last period of work was some months ago. It seems impossible to me to characterise the time while he was off work as part of an overall period of work (to use the expression found in Hatzimanolis at 483) simply because it was a time during which he was claiming and in respect of which he claimed compensation. The injury was sustained after a period of work had finished (3 months before) and pending an expected resumption of work once the worker had recovered. The injury was sustained between the end of one period of work and while the worker was waiting to take up work again, once he had recovered. Can one say that the links identified above between the fall at Calvary Hospital and the employment are such that the fall nevertheless occurred within one overall period of work and so in the course of employment?

In my opinion one cannot. I do not consider that, consistently with current conceptions, one would characterise the period of work as extending to include such isolated episodes.

I therefore conclude that the injury was not sustained in an interval occurring within an overall period of work. The case is not like Danvers. But even that is not the end of the matter. Although on my approach the injury was sustained in an interval between two discrete periods of work, or between a period of work and an anticipated resumption of work, were the circumstances such that this particular incident occurred in the course of employment as currently conceived?

In other words, does this isolated incident occurring out of working hours, have a connection to the worker's work or employment such that it is in the course of that employment?

I would answer that question in the negative. There is no connection between the incident and the worker's duties of employment. The employer's interest in the worker complying with the Corporation's requirement is balanced by the worker's own interest in obtaining compensation. The attendance at Calvary Hospital was in no sense for the purpose of the worker's work, it was in no sense ancillary or incidental to his work. It was, I concede, linked to his employment, because workers' compensation is a usual aspect of employment, and he was pursuing his rights to compensation, but to my mind that does not mean that what he did was in the course of employment. There is no link to performance of the duties of employment, although there is a link to the employment of the worker, But that link is not of a kind which makes me regard the attendance as in the course of employment. Putting it differently, I agree with the Tribunal that the link to the employment is too tenuous.

I appreciate that I have given no precisely expressed reason for my conclusion. In the end, as with all matters involving sufficiency of connection, there is an element of judgment and impression which defies precise explanation. All I can say is that to my mind the link with the worker's work, with his duties of employment, seems to me too remote. I acknowledge the link with employment, but something more than that is required.

JUDGE2 DUGGAN J 44. I would dismiss the appeal for the reasons given by the Chief Justice.

JUDGE3 DEBELLE J 45. I have had the advantage of reading the reasons for judgment of the Chief Justice. I agree with him that the worker�s disability did not fall within the provisions of s30(3)(e) of the Workers Rehabilitation and Compensation Act, 1986 ("the Act"). However, I am unable to agree with him that the disability did not arise out of or in the course of the appellant�s employment and so was not a compensable disability. The material parts of s30 as enacted at the relevant time were in these terms: "(1) Subject to this Act, a disability is compensable if it arises from employment.(2) A disability arises from employment if - (a) in the case of a disability (not being a secondary disability or a disease) - it arises out of or in the course of employment."

This is not a secondary disability or disease. Thus the disability is compensable if it arises out of or in the course of employment.

The expression "arises out of or in the course of employment" has been the subject of constant judicial comment in this State and elsewhere. The words "in the course of employment" have been considered by the High Court on many occasions. For present purposes it is sufficient to refer to Pearson v Fremantle Harbour Trust [1929] HCA 19; (1929) 42 CLR 320; Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22; Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281; Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126; Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 where the earlier decisions were affirmed and applied.

The expression "in the course of employment" includes that which is incidental to the contract of employment. It includes both doing that which should be done to comply with the contract of employment as well as that which is an adjunct to or incident of the employment: Pearson at 327-330. The requirement that the injury arises in the course of employment is satisfied if the accident happens while the worker is doing something in the exercise of his functions although no more than an adjunct to or an incident of the contract of employment: Pearson at 330. It includes that which in contemplation of law is part of the contract of employment: Pearson at 330.

In Whittingham v Commissioner of Railways (WA), Dixon J (at 29) applied Pearson and emphasised that the connection between the thing done and the employment can often be a matter of degree which will be determined by considering all relevant circumstances together with the conditions of employment. He said: "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. It is another matter to be sure what is included within this conception. In Pearson v Fremantle Harbour

Trust ((1929) 42 CLR at pp327-330) some passages are collected from judgments in the House of Lords in which illustrations are given of acts done by workmen which are preparatory or incidental to or consequential upon the performance of their actual work. As the test is not, and could not be, whether the employee was obliged to act as he was doing when the accident occurred, the inclusion of things arising out of the actual performance of his duty was, no doubt, inevitable, but, as a result, the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment."

In Henderson (at 294) Dixon J reaffirmed the need to have regard to the nature and terms of the employment and what the worker might be reasonably required, expected or authorised to do: "Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties."

These observations have been consistently applied since. They apply also in cases where the accident does not occur in or near the place of employment. See also Dixon J in Humphrey Ltd v Speechley at 133-134. In Danvers v Commissioner of Railways (NSW) at 536 Barwick CJ said that the approach in Henderson "should be applied liberally and practically" and affirmed (at 537) that what may be in the course of employment is referable to "the general nature 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".

Section 53 of the Act provides a means by which WorkCover Corporation can investigate claims. For present purposes it is sufficient to refer only to s53(1), (2) and (3) which provide: "(1) On receipt of a claim for compensation the Corporation shall make such investigations and inquiries as it thinks necessary to determine the claim.(2) For the purpose of satisfying itself of the nature, extent or probable duration of a disability, the Corporation may require a worker to submit to an examination by a recognised medical expert nominated by the Corporation from a list of approved experts.(3) If a complainant for compensation-(a) fails or refuses to furnish information reasonably required by the Corporation to determine the claim; or(b) fails or refuses to submit to an examination as required under subsection(2)the claim may be rejected."

Thus, the Corporation can acquire a medical examination for the purpose of determining whether the disability arose out of or in the course of employment as well as, in the case of claims which are in respect of compensable disabilities, for determining the nature, extent, and duration of the disability. Section 53 enables the Corporation to reject claims and to reconsider a rejected claim. (s53(7)). A worker must attend a medical examination. Indeed, he has no alternative but to do so if he seeks to prosecute his claim. That is the clear effect of s53(3)(b). Although there is no provision in the Act which requires the employer to permit a worker to attend a medical examination in working hours, it is implicit that he should do so. It is to the employer�s advantage to allow the employee to do so. The medical examination will provide information as to the nature, extent and duration of the disability and indicate whether the worker will be able to return to work and, if so, when and what duties the worker will be able to perform. It will also disclose whether, in truth, the worker has suffered a disability in the course of his employment and whether he is fit to return to work. In short, the interests of the employer as well as those of the Corporation benefit from the examination. The obligation to present for medical examination either at the request of the Corporation or an exempt employer has existed long enough to be regarded as a normal incident of employment.

For all of these reasons, it is fair to hold that, because there are benefits for the employee as well as for the Corporation, it is an implied term of the contract of employment that a worker shall comply with a request by the Corporation to attend a medical examination. If that is not so, it is at the very least an incident of the contract of employment.

The injury in this case occurred while the worker was at Calvary Hospital for a medical examination requested by the Corporation for the purpose of determining whether the pain in the chest he had suffered was a compensable disability. It was one of several medical examinations he had been required to attend for that purpose. He did so as an incident of his employment. It follows that the Tribunal erred in concluding that the injury he suffered in consequence of the fall at Calvary Hospital did not arise in the course of his employment.

The fact that Parliament has expressly provided in s30(3)(e) that attendance by the worker at any place for the purpose of obtaining a medical report in connection with a compensable disability does not militate against this conclusion. Section 30(3)(e) does not narrow or restrict the operation of s30(1) and (2).

The fact that the worker had been absent from work for some three months when the fall at Calvary Hospital occurred does not affect that conclusion. In a case of this kind, it is, generally speaking, inappropriate to have regard to the time when the worker last performed any work for his employer. Not infrequently, workers who have been disabled at work and who have been unable to return to work by reason of the injury are required to undergo a medical examination. In some cases, the absence from work will be short, even a matter of days. In others, the absence will be lengthy. The relevant criterion is not the period of absence from work but whether it is an incident of the contract of employment to attend the medical examination. Nor is it a relevant fact that it was ultimately determined that the pain in the worker�s chest was not a compensable disability. The requirement to attend for a medical examination exists whether the disability is compensable or not. Indeed, it is not possible to decide that question unless the examination has been held. As already mentioned, it is of benefit to the employer to have that question determined.

For these reasons, I would allow the appeal, set aside the decision of the Tribunal and restore the decision of the Review Officer.