Glass v Workers' Compensation Regulator [2020] ICQ 1

Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246, cited

Glass v Workers' Compensation Regulator [2019] QIRC 046, related

Kavanagh v The Commonwealth [1960] HCA 25; (1959-1960) 103 CLR 547, cited

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; [2006] 1 Qd R 519, cited

Waugh v Blackwood [2015] ICQ 28; (2015) 251 IR 126, cited

SA McLeod QC with RM O'Gorman for the appellant instructed by Holding Redlich

PB O'Neill instructed by the Workers' Compensation Regulator for the respondent

[1] In November 2016 Geraldine Glass was employed as a teacher by Brisbane Catholic Education (BCE) at the Xavier Catholic College (XCC).

[2] XCC had, for many years, conducted trips for students to Vanuatu to engage in marine studies and cultural exchanges. Ms Glass was, with another teacher, the nominated Tour Leader/Tour Coordinator for the trip conducted in November 2016. While on the trip she injured her shoulder.

[3] The question before the Commission was whether she had suffered an injury within the meaning of that term in s 32 of the Workers' Compensation and Rehabilitation Act 2003. At the relevant time, s 32 defined "injury" in this way:

"(1) An injury is personal injury arising out of, or in the course of, employment if -

(a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury;

[4] The deceptively simple words - "arising out of, or in the course of, employment" - are at the heart of this case. Difficulties in applying these words have frequently been the subject of judicial comment. For example, in Comcare v PVYW,[1] the majority said:

"[12] Hatzimanolis was not the first occasion on which a general principle has been stated as to how it might be determined whether an employee who has suffered an injury has done so 'in the course of' the employee's employment. This is understandable. It has never been suggested that the development of a statement of such a principle is an easy matter. Its application can prove even more troublesome."

[5] The application of the relevant principles proved troublesome in this case and led to the Commission mischaracterising the circumstances surrounding the injury to Ms Glass. Before embarking on a consideration of the relevant legal principles, I will briefly review the factual background.

[6] The trip to Vanuatu took place in the last week of November 2016. Although XCC had already received preliminary approval for the overseas trip from the XCC College Leadership Team, the tour organisers submitted a formal application to a body within the BCE called the International Travel and Advisory Panel (ITAP). ITAP approved the trip subject to some conditions which were satisfied and the group of five adults and 27 students departed Australia on 23 November 2016.

[7] On the second day of the trip, a decision was taken to alter the itinerary because the original destination for that day was unsuitable and the group travelled to the Blue Lagoon. The changed itinerary was not the subject of approval by ITAP.

[8] The Commissioner found that the decision to go to the Blue Lagoon was made following discussions with staff at the island resort but did not accept that the decision was "a collaborative and professional decision made by five teachers" as claimed by Ms Glass. The Commissioner was "also not persuaded that any meaningful attempt was made by Ms Glass, Mr McQuaid or Ms Freshwater to undertake a risk assessment of the Blue Lagoon, any related swimming activities or the rope swing activity before arriving at the lagoon."

[9] On arriving at the lagoon the teachers observed that there was a knotted rope which was attached to a tree overhanging the lagoon. A person could climb onto an elevated platform, take hold of the knotted rope, swing off the platform over the water, let go of the rope, and fall into the lagoon.

[10] The evidence relating to the injury was summarised by the Commissioner in her reasons[2] in this way:

"[66] Ms Glass explained she participated in the rope swing activity to develop 'right relationships with students. It gives them confidence.... also develops an inter-respect between the teachers and the students'.

[67] Ms Glass confirmed she was not required to participate in the rope swing in order to adequately perform her obligations in respect of supervising the students. Likewise, Mr McQuaid confirmed there was no condition associated with the supervision of students that required him to swing on the rope.

[68] Mr McQuaid confirmed the idea of accessing the rope swing was very much student-driven, with several students actively encouraging him to participate.

[69] When it was her turn to swing off the platform, Ms Glass said she held the rope, placed her foot on the knot at the bottom of the rope and swung out. At the point of maximum pendulum swing - about 45 degrees - she said she dropped into the water like most other people would have, but she thought she may have fallen a bit earlier, at which point she felt something 'go' in her shoulder.

[70] Ms Glass said she put her arm up to relieve the pain, swam over to the side of the lagoon and eventually got out of the water. Upon returning to Erakor Island Resort, she recalled putting ice on her shoulder and strapping it as best she could. Over the next few days she took Nurofen and Panadol to assist with the pain."

"[150] I accept Ms Glass voluntarily decided to participate in the rope swing activity. It is clear she was not compelled, nor did she seek (or was granted) permission to access the rope swing activity by Ms Freshwater, who was a member of the school CLT, or any other representative of BCE.

[151] I also accept that participating in the rope swing activity did not form part of Ms Glass' work responsibilities or supervisory obligations while travelling in Vanuatu. Moreover, it would have been very difficult, if not impossible, for Ms Glass to both supervise students and participate in the rope swing activity at the same time.

[152] On her own evidence, Ms Freshwater acknowledged she had no involvement in the approval of the original application for the Vanuatu travel at the CLT level, had no knowledge of the Guidelines and mandatory procedures, had never travelled to Vanuatu before, had been provided with limited (if any) direction in respect of the nature of her role while in Vanuatu and did not directly or indirectly encourage Ms Glass to participate in the rope swing activity.

[153] As touched on above, having considered all the evidence before the Commission in respect of Ms Freshwater's role and responsibilities on the Vanuatu trip, I am not persuaded, also having regard to the key responsibilities of individual teachers on the trip as set in Form 4, that Ms Freshwater had any meaningful input into, or influence over, the decision to travel to the Blue Lagoon or the decision made by Ms Glass to participate in the rope swing activity."

[12] Ms Glass contended that the injury arose squarely out of her employment as she was doing the work she was employed to do or, at the very least, her use of the rope swing was incidental to that work.

[13] The Regulator argued:

(a) her action in using the rope swing formed no part of her role as a teacher and, in doing so, she was on a "frolic" of her own and, thus, outside the employment relationship; and

(b) her employment only provided a background or setting for her injury in circumstances where BCE had not approved, authorised, induced or encouraged her to participate in the rope swing activity.

[14] Most of the analysis of the issues thought to be relevant concentrated on the principles relating to "interval" cases. These are the cases which generally concern an injury which occurs between discrete periods of actual work. The principles which have been developed (as in cases such as Hatzimanolis and PVYW) apply where an employee has suffered an injury "but not whilst engaged in actual work".[3]

[15] In analysing the facts as she found them to be, the Commissioner appears to have proceeded on the basis that the injury occurred in an "interval". Reference was made by her to the paragraph in PVYW where the majority said:

"[38] 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 enquiry 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 enquiry 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."[4]

[16] The Commissioner then says that "the relevant activity to be considered is the rope swing activity engaged in by Ms Glass, rather than her presence at the Blue Lagoon or in Vanuatu." That is followed by the statement that "the question to be considered by the Commission in this appeal is whether BCE induced or encourage[d] Ms Glass to engage in the rope swinging activity. If the answer to the question be 'yes', then the injury is within the course of employment. If it be 'no', then it is outside the course of employment."

[17] The Commissioner then went on to consider a number of matters including a finding that nobody in any position of authority induced or encouraged Ms Glass to participate in the rope swing activity. This finding was said to be based particularly with respect to evidence given by Dr Lee and Mr Kearney. They gave evidence about the ITAP guidelines and the approval process. Two of the matters upon which the Commissioner relied in that finding were that approval for the rope swing activity would not have been given had it been sought and the risk assessment undertaken in respect of the rope swing activity was deficient. I cannot, with respect, understand how either of those matters (which are matters of opinion expressed after the event) are relevant to a finding that BCE did not, in fact, induce or encourage participation in the activity. In any event, that is not a vital part of the reasoning process.

[18] After referring to a number of considerations, the Commissioner found that she was "not satisfied Ms Glass was induced or encouraged, either implicitly or explicitly, to undertake the rope swing activity" and dismissed the application. There was no need to consider whether there was such inducement or encouragement unless the Commission was proceeding on the basis that this was an "interval" case.

[19] The Commissioner went on to consider the alternative argument should she be found to be wrong in her view about the application of "interval" cases principles. She held that Ms Glass was not fulfilling her teaching role at the time she undertook the rope swing activity, or that the rope swing activity was incidental to her work. This finding was made, the Commissioner said, in circumstances where:

(a) the rope swing was not an authorised or approved activity for either staff or students;

(b) on her own evidence, Ms Glass made a voluntary choice to participate in the rope swing activity;

(c) the rope swing activity was recreational in nature and it was not a requirement of Ms Glass' employment that she participate; and

(d) it was physically impossible for Ms Glass to actively supervise students while also participating in the rope swing activity.

[20] The Commissioner dismissed Ms Glass' submission that her engaging in the rope swing activity with the students was taken in furtherance of the role she was fulfilling in Vanuatu. It was argued that that activity was consistent with the general practice on the trip of the teachers actively participating with the students in their activities including, for example, participating in scuba diving. This was distinguished by the Commissioner on the basis that activities such as scuba diving were approved by ITAP.

[21] The Commissioner concluded by finding that Ms Glass made a personal and voluntary decision to participate in a recreational activity that fell well outside the ambit of her teaching duties and responsibilities. Further, she found that, whether or not it was appropriate, "it was not necessary for Ms Glass to participate in the activity in order to supervise the students."

[22] The Commissioner also found that there was no connection between Ms Glass' employment and her injury. This finding was based on:

(a) the trip to the Blue Lagoon and participation in the rope swing activity had not been authorised by BCE, ITAP or a representative of XCC;

(b) permission was neither requested nor granted by ITAP or the leadership team; and

(c) participation in the rope swing activity did not form part of her duties as a teacher nor was it incidental to those duties.

[23] The Commissioner referred in some detail to the Code of Conduct and other policies which applied to this trip. The Code of Conduct, which applied to all teachers, deals broadly with a number of issues and reinforces the requirement that employees have some responsibility for contributing to the fulfilment of the BCE's duty of care to its employees and students.

[24] The BCE "International Travel Guidelines and Mandatory Procedures" requires that the Code of Conduct must be observed at all times by all staff engaging in international travel. The Guidelines contain the requirements for the creation of risk management plans which are to be considered by ITAP and approved with or without conditions or refused. The risk management plan created for the trip to Vanuatu contained provisions with respect to scuba diving but not, of course, with respect to the Blue Lagoon activities which were engaged in as a result of the planned activity not being available.

[25] When the original plan could not be followed the change to the Blue Lagoon was undertaken but without any of the approval processes required being undertaken or, it seems, considered. The Commissioner found that three of the teachers had little, if any, knowledge of the ITAP Guidelines and that the appellant, while having some understanding of them, had not read the mandatory procedures within the Guidelines, nor understood its interaction with the Code and other relevant policies.

[26] In her consideration of the actions of the teachers with respect to the Guidelines and the change in plan, the Commissioner held that she could not accept Ms Glass' claims that the decision to travel to the Blue Lagoon was "a collaborative and professional decision made by five teachers". This action was inconsistent with the policies contained within the Code and the XCC Child and Youth Risk Management Strategy (as adopted by the Guidelines) which reinforce the importance of developing risk management strategies for medium and high risk activities outside school grounds. The Commissioner also held that no meaningful attempt was made to undertake a risk assessment before arriving at the Blue Lagoon.

[27] The starting point for any consideration of whether an injury has been suffered during an "interval" is that there must be facts sufficient to justify a finding that "an employee suffered injury, but not whilst engaged in actual work".

[28] It is only if the appellant was injured while not working that the principles in PVYW are strictly applicable. The Regulator contends:

"In circumstances where the Appellant was in fact overseas for work purposes and therefore in an overall period of work scenario including periods of work and non-work periods, and both work activities and non-work activities supported the Commissioner utilising the principles from the 'interval' cases in determining whether the Appellant's injury occurred in the course of her employment."

[29] While it has been recognised that the decision in PVYW can be of assistance in cases which are not "interval" cases, that is because of the extra consideration given in that decision to matters of wider effect. In Waugh v Blackwood,[5] for example, reference was made to PVYW because of the consideration given to the expression "arising out of ... the employee's employment". Waugh was not an interval case.

[30] The respondent referred to a series of decisions in which reference had been made to PVYW. Each of them, though, was concerned with a situation where there had been a clear cessation of work by an employee and an injury was suffered before the next period of work started or was due to start. A distinction can be drawn between cases where an employee finishes a period of work and is injured and an employee who is on 24 hour call is injured at a period when the standard hours of work have concluded. That was the situation in Blackwood v Ziebarth.[6]

[31] In oral argument the Regulator contended that there was an interval which commenced when Ms Glass put her hand on the rope (with the intention of swinging on it) and which concluded, presumably, when she returned to the shore of the lagoon. In other words, the length of the interval was dictated by the activity. It could have been as short as five seconds.

[32] The Regulator argued that Ms Glass, during that period in which she engaged in the rope swing activity, was no longer within the course of her employment. She was not undertaking her employment duties and was, in fact, incapable of undertaking those duties.

[33] That is not an argument about whether the injury occurred during an interval in the traditional sense. It is an argument that Ms Glass, during a period of work, ceased to undertake her duties. This came about, it is argued, because she engaged in a recreational activity and so deliberately put herself in a position where she could not supervise the students.

[34] The issue, on the respondent's case, is one of characterisation of the activity. The respondent drew a contrast with the activities engaged in on the day before the injury. On that day Ms Glass had, with the other teachers and students, engaged in scuba diving and snorkelling. The respondent argued that the difference between that scenario and what occurred on 24 November was that the risk management strategy which had been created was designed to ensure that there would be a teacher in the water with the students at the time the scuba diving was undertaken as it would be appropriate for proper supervision to require a teacher actually being in the water with the students. This, the Regulator said, shows that there was a distinction and that the distinction was due, at least in part, to the risk mitigation strategy which had been created for the purposes of the trip.

[35] Further, the Regulator argued that there was a difference between what Ms Glass had done and a teacher who was organising physical education, for example, teaching football or similar activities and which requires the teacher to demonstrate techniques. According to the Regulator's argument, when Ms Glass undertook the rope swing activity she was not engaged in any form of teaching or supervision but was engaged in a purely recreational activity.

[36] None of that necessarily requires consideration of the principles relating to "interval" cases. It should be observed that the principles which do apply to interval cases are not substitutes for the requirements in s 32(1) but are the means by which those requirements can be examined.

[37] This is a case about characterisation and about whether or not the actions of the appellant fell within the definition of injury in s 32 of the WCR Act.

Did the injury arise out of, or in the course of, employment?

[38] The case advanced by the appellant is that Ms Glass, by joining the students in the rope swing activity, was performing her role as a supervising teacher on the school excursion. Further, it is argued that "her actions in actively taking a turn on the rope swing were done in discharge of her role in facilitating the students' engagement in the activity and ensuring the students' safety."

[39] I was not directed to any evidence which would support the conclusion that by using the rope swing Ms Glass was "ensuring the students' safety".

[40] The relevant principles to be applied with respect to the test in s 32(1) were considered in Kavanagh v The Commonwealth.[7] In that case, it was held that a personal injury caused by an accident which occurred to a Commonwealth employee whilst performing his or her duties, or whilst doing something incidental thereto, arises "in the course of his employment" within the meaning of the relevant Commonwealth statute notwithstanding that there was no causal connection between the injury and the employment or its incidents.

[41] The legislation being considered in Kavanagh did not contain the same requirement as appears in s 32 namely that "the employment is a significant contributing factor to the injury". I will deal with that later in these reasons. Nevertheless, the reasoning is relevant with respect to the words "arising ... in the course of employment".

[42] Fullagar J said:

"But what does emerge from a consideration of the cases is, I think, the significant fact that the effect of requiring a causal connexion between employment and injury is always attributed to the words 'out of' and not to the words 'in the course of'. (The words ... 'out of' do indeed import causation: the words 'in the course of' do not.) The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment**. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment.** And it necessarily follows, I think, that the words 'arising in the course of his employment' ought not to be regarded as meaning anything more or less than 'arising while the worker is engaged in his employment'. For I can find no tenable half-way house between this view and the view that the words in question have the same meaning as the words 'arising out of his employment'."[8] (emphasis added)

[43] Menzies J reviewed a number of authorities and said:

"My review of these cases leads to the conclusion that if a worker is injured while doing something incidental to what he was employed to do, that is sufficient and no other association between the injury and his work is necessary; he is to be in the same position as if the injury arose while he was doing what he was employed to do. So far then from these cases indicating any causal element covered by the phrase 'in the course of', they seem to me to accept a temporal relationship as sufficient, and to extend the time from working time to the time of doing what is incidental to work. This clearly appears from what was said by Jordan C.J. in Davidson v. Mould : 'The initial question is whether it was open to the Commission on the evidence to find that the injury arose in the course of employment, that is to say, whether it was sustained whilst the worker was doing the work which he was employed to do or something incidental to it. If, when he sustained the injury, he was engaged in doing something which it was his duty to do under his contract of employment, the case is clear. But it does not follow that because he was not then so engaged it was not sustained in the course of employment. It is sufficient if it is shown that he was at the time doing something incidental to his employment'."[9] (emphasis added)

[44] The import of Kavanagh was to identify the effect of the change in the legislation which had previously required that the injury have arisen out of and in the course of employment to the requirement in the alternative that the injury have arisen out of or in the course of employment.

[45] The requirement in s 32(1) that employment be a significant contributing factor to the injury introduces an important element of causality with the result that, in the absence of that factor, an injury caused incidentally to the employment will not be compensable.

[46] In her reasons for the decision the Commissioner engaged in an analysis of the requirements of s 32. In doing that she came to the conclusion that participation in the rope swing activity did not form part of Ms Glass' duties as a teacher. That finding was supported by the evidence concerning the guidelines imposed by the employer on the management of risk. There was evidence to the effect that participating in the rope swing activity was part of the educational aspect of the trip in that it showed a teacher, in this case Ms Glass, as someone who was willing to engage in a way which assisted the development of relationships with the students. While there can be no criticism of that as a general proposition, it was open to the Commissioner to hold that in circumstances where BCE had gone to some lengths to identify and manage risk, and to compel the observation of plans designed to deal with risk, the use of the rope swing was outside the scope of employment.

[47] The finding made on this point was supported by other findings made, including that:

• (a) the rope swing was not an authorised or approved activity for either staff or students;

• (b) on her own evidence, Ms Glass made a voluntary choice to participate in the rope swing activity;

• (c) the rope swing activity was recreational in nature and it was not a requirement of Ms Glass' employment that she participate; and

• (d) it was physically impossible for Ms Glass to actively supervise students while also participating in the rope swing activity.

[48] With respect to the issue of whether Ms Glass' actions were incidental to her employment, the appellant identified an error in [185] of the Commissioner's reasons where she noted "that it was not necessary for Ms Glass to participate in the activity in order to supervise the students." That is not the test. It is whether the activity was incidental not whether it was necessary. Nevertheless, the Commissioner did go on to find that the rope swing activity was not incidental to Ms Glass's employment and the reasoning which supported that finding was obvious in the analysis undertaken of the voluntariness of the action and the skirting of the risk management guidelines, among other things.

Was employment a significant contributing factor?

[49] The appellant has not demonstrated that the Commissioner's ultimate findings that the injury did not arise out of or in the course of employment are incorrect. Even had she done that she would, in order to succeed, have had to demonstrate an error in the Commissioner's finding that employment was not a significant contributing factor. But that is not a ground of appeal. As such the decision cannot be disturbed for, whatever view one takes of the reasoning process or whether this was or not an interval case, this requirement remains and the finding is unchallenged.

[50] In any event, the Commissioner did not err in this respect. She referred to the decision in Newberry v Suncorp Metway Insurance Ltd[10] where Keane JA (with whom de Jersey CJ and Muir J agreed) said:

"[27] It cannot be disputed that, when s 32 of the WCRA speaks of 'employment' contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to 'what the worker in fact does during the course of employment'. The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.

[41] ... I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been 'a significant contributing factor to the injury'. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment'.

[42] Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former." (emphasis added)

[51] The Commissioner correctly observed that the employment must be important or of consequence so far as the injury is concerned and that there must be some connection between the two things. There was nothing that required Ms Glass to use the rope swing. There was no urgency arising out of her employment which led her to use the rope swing. It was something she decided to do and her employment was not a significant contributing factor to her injury. No error has been demonstrated.

[1] [2013] HCA 41; (2013) 250 CLR 246.

[2] [2019] QIRC 046.

[4] The excerpt set out in the decision is inaccurate. It appears to have conflated the eighth and ninth sentences.

[5] (2015) 251 IR 126; [2015] ICQ 28.

[6] [2016] ICQ 5.

[7] [1960] HCA 25; (1959-1960) 103 CLR 547.

[10] [2006] QCA 48; [2006] 1 Qd R 519.