Hatzimanolis v ANI Corporation Ltd

13. There is no doubt that such functions are regarded by some of the RAAF administrators as being good for morale. They probably also regard social events involving RAAF personnel in birthday parties, christenings, weddings, bucks' parties and excursions as being good for morale and camaraderie. Any employer would be loath to restrict or prohibit such activities among his/her employees. If an employer prohibited the use of his/her facilities by employees for social events, the employer would run the risk of being regarded by the employees as miserly and not worthy of loyalty. Tacit approval, permission or even encouragement by employers for their employees to enjoy each other's company should not necessarily leave the employer open to a claim such as this for compensation consequent upon an injury arising out of a social event. 14. In my view the soccer match participated in by Mr Gregory, his friends, their wives and their children went way beyond anything that could be said to have arisen out of Mr Gregory's employment with the RAAF. It is certainly unfortunate that he broke his leg but it is an injury for which workers compensation is not payable." Submissions on the Appeal Counsel for the applicant submitted that, having regard to the findings of fact made, the only conclusion reasonably open to the Tribunal applying the test as stated by Deane J in Commonwealth of Australia v Lyon (1979) 24 ALR 300 at 303, was that the applicant's injury arose out of, or in the course of, his employment. Having determined that it did, it was submitted there was nothing about the applicant's participation in the soccer match which would make the injury suffered by him during that match an injury falling outside of the definition of "injury" in s 4(1) of the Act. Any finding by the Tribunal to the contrary, it was submitted, was a finding which was not reasonably open to the Tribunal. Conclusions on the Appeal In Hatzimanolis, the High Court was concerned with the New South Wales equivalent of the definition of "injury" in s 4(1) of the Act. Mason CJ, Deane, Dawson and McHugh JJ, in a joint judgment, considered (at 478 - 479) that what had been absent from the earlier cases in this area and what was now required was an "organising principle" to assist a tribunal of fact in determining whether an injury was sustained in the course of employment. After reviewing the authorities, including Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, their Honours said (at 482) :- "Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something 'in order to carry out his duties' at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers." (The reference to Oliver and Danvers is a reference to the decisions in The Commonwealth v Oliver (1962) 107 CLR 353 and Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529). Their Honours noted (at 482) that a "striking feature" of the recent cases which had held that an injury occurring in an interval between periods of actual work was within the course of employment was that the employer had authorised, encouraged or permitted the employee to spend the time during that interval in a particular place or in a particular way. However, their Honours thought it would be an "unacceptable extension" of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work in a particular place or in a particular way. Their Honours continued (at 483) :- " ... Thus, an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor, although the case would come within such a formulation. The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work. The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterization of the period or periods of work of those employees. For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality." Accordingly, their Honours concluded (at 484) :- " ... it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment 'and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen' Danvers (1969) 122 CLR at p 537." The judgment of the majority in Hatzimanolis did not, in any view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth of Australia v Lyon 24 ALR at 303 - 304). What their Honours did in Hatzimanolis was provide to tribunals of fact reasoned guidance, by way of a "unifying principle", in determining whether that temporal connection exists in circumstances where the injury in question is sustained during an interval between periods of actual work. Their Honours concluded that the distinction between a compensable and a non-compensable injury occurring in such an interval, where the employer had induced or encouraged the employee to spend the interval at a particular place or in a particular way and the injury was sustained at that place or while the employee was engaged in that activity, was to be drawn by a characterisation of the period or periods of work of the particular employee. That characterisation highlights the temporal nature of the connection between the place or activity at or during which the injury occurred and the employment. The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because, putting aside injuries suffered while travelling to and from work and the like which are specifically provided for under the Act (see s 6), the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained. The example given by the majority in Hatzimanolis of the employee who is encouraged by his or her employer to see a doctor after working hours illustrates the point. Whilst it might be said that an injury sustained by the employee while visiting the doctor is in some way causally connected to his or her employment, there can be no question of a temporal connection. That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or activity and the employment. In the instant case, it is clear from the Tribunal's reasons, and in particular from paragraph 10 quoted above, that the Tribunal found that the applicant's injury occurred in an interval between two discrete periods of work, rather than in an interval during an overall period of work, such as a lunch break or the kind of interval with which the High Court was concerned in Hatzimanolis. The Tribunal did not find nor, in my view, could it properly have found on the evidence before it, that the farewell barbecue at which the applicant was injured was an interval occurring during an overall period or episode of work. There was no basis for the Tribunal to find that the applicant's period of employment in the RAAF at the Base was an undertaking extending over a number of daily periods of work so as to constitute an overall period or episode of work. Having so found, the Tribunal considered whether there was anything in the nature or circumstances of the farewell barbecue and the soccer match which indicated a sufficient connection with the applicant's employment so as to make the injury sustained by the applicant a compensable one. The Tribunal concluded that there was not. Counsel for the applicant urged me to conclude that the Tribunal's finding in this respect was one which was not reasonably open to it. I am not persuaded that it was not a finding reasonably open to the Tribunal. The question for the Tribunal was a question of fact and inherently one of degree. There was evidence before the Tribunal to support the finding. Indeed, having regard to the principles enunciated by the majority in Hatzimanolis and to the Tribunal's finding that the applicant's injury occurred during an interval between two discrete periods of work, a finding to the contrary would have been more readily susceptible to challenge as being one not reasonably open. In my view, there is no error of law disclosed in the decision of the Tribunal. The appeal will be dismissed with costs. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of his Honour Justice Cooper. Date: 15 January 1997 Associate

Counsel for the Applicant: A J Moon Solicitors for the Applicant: Connolly Suthers by their town agents McInnes Wilson & Jensen Counsel for the Respondent: C E Holmes Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 18 November 1996 Place of Hearing: Brisbane Date of Judgment: 15 January 1997