Arising out of, or in the course of, employment
26 An injury that arises out of an employee's employment is one that is suffered in the process of performing the work that the employee is retained to perform, or other work incidental thereto: Charles R. Davidson and Company v M'Robb (1918) AC 304, 321 (Lord Dunedin); O'Kane v Comcare (2014) 221 FCR 482, 490-491 [56] (Robertson J). In order for an injury to arise out of employment, then, there must be a causal relationship between the injury and the work: Telstra Corporation Ltd v Bowden (2012) 206 FCR 207, 213 [32]-[35] (Murphy J); Kennedy v Telstra Corporation (1995) 61 FCR 160, 164 [17] (Tamberlin J). Injuries sustained whilst actually performing work are obvious examples.
27 What is meant by "the course of…employment" is less easily identified. In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, Dixon J (with whom, in the result, McTiernan J agreed; Latham CJ dissenting) held (at 294):
The general principle governing the ascertainment of the "course of employment" appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful… 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.
28 More than a decade later in Humphrey Earl Limited v Speechley (1951) 84 CLR 126, 133 (Dixon J, with whom Williams, Webb and Fullagar JJ agreed; McTiernan J agreeing in the result"), his Honour observed (emphasis added):
[T]he question whether [an injury] occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorized to do in order to carry out his duties.
…
…to make what he did [or was doing at the point that he was injured] part of the course of his employment it is necessary that it should be reasonably connected with the particular situation which the performance of his duty to his employer had created.
29 Whereas "arising out of…employment" denotes a causal relationship between an employee's work and an injury sustained whilst performing it, "in the course of…employment" denotes a temporal connection. An injury will qualify as one sustained in the course of an employee's employment if it can be said that it was sustained in circumstances possessing a sufficient connection to the employee's work.
30 Identifying what is sufficient can be tricky. It is well recognised that injuries that are sustained outside of periods in which an employee is performing his or her work (or tasks incidental to it) can qualify as injuries sustained "in the course of…employment". An injury sustained during a short work break - a tea break, for example - would typically (although, perhaps, not always) qualify: see, in that vein, Commonwealth v Oliver (1962) 107 CLR 353, 363 (Menzies J, with whom, in the result, Dixon CJ agreed; Owen J dissenting).
31 In Mendez v Telstra Corporation Limited (1998) 147 FLR 394, 395 (Handley JA, with whom Mason P and Sheppard A-JA agreed), the NSW Court of Appeal held that the course of an employee's employment commences when the employee starts work in accordance with his or her ordinary or overtime hours of work and ends when the employee completes those hours. Thus an injury that is sustained before an employee arrives at, or after he or she leaves, work on any ordinary work day might normally be thought not to have been sustained in the course of his or her employment (subject always to other provisions of the SRC Act that, in some circumstances, deem otherwise).
32 That last observation does not apply universally. The authorities acknowledge a distinction between non-working intervals - that is to say, periods of time over which an employee does not perform his or her work duties - that occur between two discrete periods of work (on the one hand) and non-working intervals that occur throughout an overall period or episode of work (on the other). In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (hereafter, "Hatzimanolis"), the majority of the High Court discussed that concept in the following terms (at 483):
…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…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.
33 Hatzimanolis is an important case. Mr Hatzimanolis lived in New South Wales, where he was employed on a casual basis by the respondent, ANI Corporation Ltd. He expressed interest in being - and, later, was - sent to perform some electrical work at the Mt Whaleback mine near Newman, in the Pilbara region of Western Australia. Specifically, he and some others were seconded to work on a three-month contract, during which he was expected to work approximately ten hours per day for six days each week. Over the course of that contract, the respondent provided camp accommodation and two vehicles, which the group used for transport purposes. A few weeks into his stint at the mine, Mr Hatzimanolis's supervisor organised for the group to take the two vehicles to Wittenoom Gorge on one of their days off. On the return journey, the vehicle in which Mr Hatzimanolis was riding overturned and he was seriously injured. His claim for compensation was rejected on the basis that his injury was not one that arose out of, or in the course of, his employment. The High Court overturned that conclusion, observing (at 484; references omitted) 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, 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…
34 There are obvious parallels between Hatzimanolis and the present case. Plainly enough, Ms Dring was not working at the time that she slipped and fell. Her injury was sustained during an interval or interlude between two periods of work. But they were not "discrete" periods of work in the sense contemplated by Hatzimanolis; they were periods within a broader episode constituted by Ms Dring's trip to Melbourne to attend a series of workshops related to an information technology project with which she was involved. There is no doubt that the injury that Ms Dring sustained can, in those circumstances, be thought to have arisen in the course of her employment more readily than would be the case had it arisen during an interval separating two typical work days. Telstra does not contend otherwise.
35 On its face, Hatzimanolis appears to qualify as "arising…in the course of…employment" any injury that is sustained (a) during an interval or interlude in an overall period or episode of work (and b) at a place at which the employer induced or encouraged the employee to be. If that were the case, Ms Dring's injury would qualify as one in respect of which s 14 of the SRC Act would entitle her to compensation.
36 Regrettably, the issue is somewhat more complex.
37 In Comcare v PVYW (2013) 250 CLR 246 (hereafter, "PVYW"), the High Court had occasion to consider - and, perhaps, refine - Hatzimanolis. That was the most recent occasion on which the High Court considered the circumstances in which an injury might be understood to have arisen out of, or in the course of, an employee's employment. Given its centrality to the present appeal, it is necessary to invest some time analysing it.
38 PVYW was a case, like this one, in which an employee was injured at a hotel. The employee had travelled for work purposes to a regional office of her employer's. Accommodation for the purposes of that trip had, as in Ms Dring's case, been provided for her. Whilst she was having sex with an acquaintance in her hotel room one evening, a light fitting was pulled from its mount and struck her in the face. The resulting injuries (both physical and psychological) were the subject of an application for compensation under the SRC Act. The employee claimed that her injuries had arisen out of, or in the course of, her employment. The appellant, Comcare, rejected that claim; and the employee's appeal of that rejection to the Tribunal failed. Before this court, however - both at first instance and on appeal - the employee's contention was accepted. The High Court, by majority (French CJ, Hayne, Crennan and Kiefel JJ, Bell and Gageler JJ dissenting) upheld Comcare's appeal, in the process concluding that the employee's injuries had not arisen out of, or in the course of, her employment.
39 In PVYW, the employee contended, as Ms Dring contends now, that her injuries were sustained at a place at which her employer had induced or encouraged her to be. Because they were sustained during an interval or interlude in an overall period or episode of work, it followed (so she submitted) that she satisfied one of the two alternative circumstances that the High Court identified in Hatzimanolis; and that her injuries should, therefore, be understood to have arisen in the course of her employment.
40 In rejecting that contention, the majority emphasised (at 256 [16]) the importance of "…bear[ing] in mind the association which must necessarily exist (by virtue of the 'in the course of' limiter) between the circumstances in which the employee was injured and the employment." Later, their Honours stressed (at 261 [33]) that "…it will always be necessary to have regard to the 'general nature, terms and circumstances of the employment' in determining the overall question [and a]ttention is not to be focused just upon the occasion giving rise to the injury."
41 Under the heading "Applying the Hatzimanolis principle", the majority made the following important observations (at 262 [38]-[39]):
The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.
42 Those observations invite an obvious inquiry: what might qualify as an injury that occurs "at and by reference to" a place? On that score, the majority in PVYW observed (at 264 [45]; emphasis added) that:
An injury occurring to an employee by reference to or associated with a place where the employee is present may involve something occurring to the premises or some defect in the premises. For example, if the light fitting in this case had been insecurely fastened into place and simply fell upon the respondent, the injury suffered by her would have arisen by reference to the motel. The employer would be responsible for [the] injury because the employer had put the respondent in a position where injury occurred because of something to do with the place. Liability in those circumstances is justifiable. Liability for everything that occurs whilst the employee is present at that place is not.
43 In order, then, for an injury to be understood to have been sustained at and by reference to a place, there must at least be something about the place that caused the injury: that is, the injury must at least be understood to have been sustained "…because of something to do with the place". In PVYW, the majority concluded that the relevant injury occurred because of what the employee was doing at the time, rather than because of something peculiar to the place within which she was doing it. PVYW was an activity case, not a place case (to adopt the alternatives identified in Hatzimanolis).
44 It is within that context that the majority's conclusion must be understood. By way of summary, their Honours noted (at 268 [60]):
…for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.
45 This court had occasion to consider PVYW in Lee v Transpacific Industries Pty Ltd (2013) 136 ALD 652 (hereafter, "Lee"; Siopis J). In that case - not unlike this one - an employee suffered an ankle injury when he slipped on the wet forecourt of the remote Pilbara roadhouse at which he had stopped in order to make use of a public restroom. He was in the process of driving to his home in Newman, Western Australia, having earlier attended a medical appointment in Port Headland, some 450km to the north. That appointment had been made for him by his employer. It pertained to a workers compensation claim that he had made in respect of an unrelated knee injury. The Tribunal determined that the ankle injury was not sustained in the course of the employee's employment. That determination was overturned on appeal to this court.
46 The court, in Lee, embarked (at 659-660 [45]-[49]) upon the inquiries to which the majority adverted in PVWY (above, [41]):
The first condition in the PVYW test is satisfied because the injury occurred while Mr Lee was not engaged in actual work when he sustained his ankle injury at the Auski Roadhouse.
The second question in the application of the PVYW test is: what was the employee doing when injured? There is no dispute that, having stopped at the Auski Roadhouse, Mr Lee was walking on the forecourt on his way to the toilet.
The next question (described by the majority as "the essential enquiry") is how the injury was brought about: was it by reference to a place, or by reason of the employee being engaged in an activity? The question then is, whether the employer induced or encouraged the employee to be at that place or to engage in the activity.
First, as to the activity in which Mr Lee was engaged when the injury occurred, namely, taking a toilet break in the course of a long road trip, that activity was plainly within the scope of the activity which the tribunal found that the employer had encouraged or induced Mr Lee to undertake. On that basis alone, the inevitable result of the application of the test in PVYW is that Mr Lee's injury occurred in the course of his employment with Transpacific.
Second, in applying the PVYW test in the context of the circumstances of the injury and the place at which the injury occurred, the result is the same. It follows from the tribunal's finding that the employer encouraged or induced Mr Lee to undertake the road trip to Port Hedland, that the employer encouraged or induced Mr Lee to be at the Auski Roadhouse for the purpose of taking a toilet break, as an incident of undertaking that long road trip. On the facts found by the tribunal, the injury occurred by reason of the presence of a liquid on the forecourt at the place at which Mr Lee was encouraged or induced by his employer to be. The injury, thus, occurred by "reference to the place", namely, the slippery surface of the forecourt of the Auski Roadhouse, at which his employer had encouraged or induced him to be. On the application of the PVYW test, therefore, Mr Lee's injury would also, on this basis, be found to be within the course of his employment with Transpacific.
47 There are obvious parallels between Lee and the present case. Just as Mr Lee's employer had encouraged him to travel to Port Hedland to attend a medical appointment (and, implicitly, to take such rest breaks throughout the course of that long journey as he required), so too did Telstra encourage Ms Dring to travel to Melbourne for the purposes of attending some workshops (and to be accommodated at the Novotel on Collins Street to that end). Just as Mr Lee's injury "occurred by 'reference to the place', namely, the slippery surface of the forecourt of the Auski Roadhouse", so too did Ms Dring's injury occur, at least in part, on account of a hazard - slippery, recently-mopped tiles - that was present at the hotel at which she was accommodated.
48 There is also, of course, a glaring point of distinction that separates Lee from this case: whereas Mr Lee's interaction with the hazard that occasioned his injury occurred whilst he was returning from an appointment that his employer had made for him, Ms Dring happened across the wet tiles upon which she slipped and fell in the early hours of the morning, after some eight-and-a-half hours of weeknight socialising, only a matter of hours before she was to attend workshops the following day, which were the reason for her being in Melbourne. At issue presently is whether that might suffice to sever any connection between Ms Dring's injury and the course of her employment.
49 That issue - and the significance to it of the majority's reasoning in PVYW - was the subject of consideration in Westrupp v BIS Industries Ltd (2015) 238 FCR 354 (hereafter, "Westrupp"; Buchanan, McKerracher and Katzmann JJ). There, the employee, Mr Westrupp, was a "fly in/fly out" worker who was injured as a result of an assault that occurred whilst he was socialising between shifts at a tavern maintained within the camp at which he was accommodated. The Tribunal rejected his claim for compensation under the SRC Act. On appeal, a full court of this court overturned that result.
50 After embarking upon a thorough analysis of the majority's reasoning in PVYW, their Honours recognised (at 365 [53]-[54], emphasis added):
…the existence of two streams of analysis having their origins in two different circumstances - activity and place. Despite the obvious possibility for overlap on the facts of particular cases, we do not understand the majority judgment in PVYW to say that satisfaction of both tests is required as a condition for liability…
…it is not necessary to ask whether the place at which the injury occurred and the activity in which the employee was engaged were each induced or encouraged by the employer… However, in some cases (and PVYW was one such case) the employee's own conduct might indicate a lack of connection with employment.
51 Later, their Honours considered (at 367 [63]) whether anything that the majority said in PVYW might impact upon their application of the tests established by earlier authorities:
In the present case, the only question which might arise from PVYW is whether Mr Westrupp is entitled to compensation because the employer induced or encouraged him to spend an interval or interlude at a particular place and he did so in a way which maintained a sufficient connection with his employment.
(emphasis added)
52 That observation has potential ramifications for this case. Unlike PVYW, Westrupp was a "place" case. The court accepted (at 365-366 [55]) that, at the time of the assault that occasioned it, Mr Westrupp was not engaged in any activity to which his injury could be thought to have been referable. Instead, his injury arose because of the presence of an aggressive patron at the tavern. Nonetheless, their Honours recognised that there might be something about the way in which an employee spends an interval or interlude at a particular place that suffices to sever any connection between an injury referable to that place (on the one hand) and the employee's employment (on the other).
53 There was no such severing of the connection between injury and employment in Westrupp. On that score, their Honours observed (at 366 [56]) that there was not "…anything exceptional in taking a drink at the wet mess…which was available to residents in the camp a short walk from the [single persons quarters part of the camp] and which was an adjunct to the accommodation provided by Mr Westrupp's employer".
54 Nonetheless, the court's observation in Westrupp (above, [51]) invites the question: in what circumstances might an employee's conduct sever what would otherwise be a connection between an injury referable (or partly-referable) to a place (on the one hand) and the employee's employment (on the other)? When might the circumstances in which an employee is injured because (or partly because) of a hazard present at a particular location rise to the standard of "exceptional", such that the connection between the injury and the employment is extinguished or absent?
55 Those are not easy questions to answer. As the full court's reasoning in Westrupp (above, [53]) might tend to suggest, determining whether, in the circumstances of any given case, there exists the connection that the SRC Act requires between injury and employment will often, if not always, be a function of impression and degree.
56 I turn, then, to the application in this case of the principles that emerge from the authorities. Plainly, Ms Dring's injury was sustained whilst she was not performing the work for which she was employed. Equally plainly, however, her attendance in Melbourne for the purposes of attending Telstra-related workshops should be understood as an overall period or episode of work, as opposed to a series of discrete engagements. The authorities are clear: an injury sustained during an interval or interlude within such a period or episode is more likely to qualify as having arisen in the course of an employee's employment than one sustained between discrete working periods.
57 The next (or, as the majority put it in PVYW, the "essential") question is: how did Ms Dring's injury come about? At least to a degree, it came about because of Ms Dring's interaction with a hazard that was peculiar to the Novotel on Collins St: namely, the wet tiles upon which she slipped and fell. Ms Dring submits that the inquiry should end there but I do not accept - and the authorities do not require - that it should. The court is neither obliged nor well-advised to ignore the proverbial elephant in the room: namely, that Ms Dring's interaction with that hazard arose because of the time at which it materialised and the time at which she happened upon it; that is to say, at approximately 2:30 in the morning, after some eight-and-a-half hours of weeknight socialising. That observation should not be mistaken for disapproval. Ms Dring was, of course, perfectly entitled to spend her evening in the way that she did. The present inquiry is as to whether or not the circumstances betray an absence of connection between the injury and the employment. In my view, they do.
58 The Tribunal correctly concluded that "Ms Dring's injuries were a result of the activities in which she had been engaged" and that those injuries "…did not occur merely by reference to a place". The majority in PVYW did not conclude that an injury must be referable only to one or the other (activity or place). Indeed, as Ms Dring properly acknowledged, their Honours appear to have left open the possibility in any given case that, notwithstanding that an injury was associated with a particular place, circumstances might nonetheless not "…be sufficient to bring that injury within the course of the employee's employment": PVYW, 262 [40] (French CJ, Hayne, Crennan and Kiefel JJ). Admittedly and with respect, that possibility is difficult (although not impossible) to reconcile with what their Honours said at [38] of PVYW (above, [41]); but, as this court, in Westrupp, expressly acknowledged (at 365 [53] (Buchanan, McKerracher and Katzmann JJ - above, [50])), there is an "obvious possibility" that an injury might be referable to both a place and an activity. For the purposes of establishing liability under the SRC Act in respect of an injury, it is not necessary to demonstrate that an employer encouraged or induced both the activity in which an employee was engaged at the time that the injury was sustained and the employee's attendance at the location in which that activity took place: Westrupp, [54] (Buchanan, McKerracher and Katzmann JJ - above, [50]). However, an injury sustained at and because of a hazard peculiar to a particular place at which an employee was encouraged or induced to be might, nonetheless, arise otherwise than in the course of his or her employment if "…the employee's own conduct might indicate a lack of connection with employment": Westrupp, 365 [54] (Buchanan, McKerracher and Katzmann JJ - above, [50]).
59 Ms Dring's conduct in this case was of that nature. Whereas there is nothing "exceptional" about an employee enjoying a drink at a tavern located within a camp at which he is temporarily accommodated (Westrupp), or stopping off for a toilet break during a long road trip (Lee), or sleeping within camp accommodations (McCurry v Lamb (1992) 8 NSWCCR 556, 559 (Handley JA, with whom Clarke JA agreed)), or having a shower in a hotel room whilst on a work trip (Comcare v McCallum (1994) 49 FCR 199 (Lockhart J, with whom Hill and Whitlam JJ agreed)), the same cannot be said about Ms Dring's evening of 13 April 2016. As the Tribunal noted, "…common sense would dictate an employee required to be at work the following day would be expected at this hour of the night to be securely in her hotel room, which had a serviceable bathroom which she could have utilised, placing her at no risk of falling on a recently cleaned floor". Again, no disapproving undertones should be read into that. The import of that observation is simply this: by reason of the fact that her injury occurred at the time that it did, after the extensive socialising that preceded it and in the context of the work to which she was to attend later that morning, the circumstances that gave rise to Ms Dring's injury lacked a connection with her employment sufficient to constitute it as one that arose out of, or in the course of, her employment.
60 The line that separates injuries that are sufficiently connected to employment from those that are not is, it must be conceded, not easily drawn. Identifying it, for the purposes of a given case, will involve assessments based upon impression and degree. If Ms Dring had slipped over after returning to her hotel room at 10:30pm instead of 2:30am, for example, it might well be that a different outcome would have been warranted. Had she returned at 7:30am, the conclusion might have been clearer. Regardless, in the circumstances as the Tribunal has found them, Ms Dring's submission that the injury that befell her on 14 April 2016 was one that arose out of, or in the course of, her employment cannot be sustained. As the Tribunal put it: "…the extent and duration of her personal activity resulted in a broken nexus with her employment…"