Hatzimanolis v ANI Corp Ltd [1992] HCA 21; (1992) 173 CLR 473, Comcare v PVYW [2013] HCA 41; 250 CLR 246 applied.

Westrupp v BIS Industries Limited [2015] FCAFC 173, Dring v Telstra Corporation [2021] FCAFC 50, Humphrey Earl Ltd v Speechley [1951] HCA 75; [1951] 84 CLR 126 referred to.

Workers Rehabilitation and Compensation Act 1988, s 25.

Judgment Number: [2022] TASSC 37

HYDRO ELECTRIC CORPORATION v BUDDY DETLEF NAZAR

1 This appeal is from the Workers Rehabilitation and Compensation Tribunal ("the Tribunal").

2 The respondent suffered an injury as defined by the Workers Rehabilitation and Compensation Act 1988 ("the Act"). The issue before the Tribunal was whether the injury was compensable under the Act. More particularly whether the injury arose out of or in the course of the respondent's employment with the appellant. Such injury is compensable pursuant to s 25 of the Act which is in these terms:

"25 Liability of employers to compensate workers for injuries

(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or

(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) -

his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act -

(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants.

(1A) Compensation is not payable under this Act in respect of a disease which is an illness of the mind or a disorder of the mind and which arises substantially from-

(a) reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or

(b) a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker's employment; or

(c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment; or

(d) the failure of an employer to take action of a type referred to in paragraph (a) , (b) or (c) in relation to a worker in connection with the worker's employment if there are reasonable grounds for not taking that action; or

(e) reasonable action taken by an employer under this Act in a reasonable manner affecting a worker.

(2) Compensation is not payable under this Act in respect of -

(i) attributable to the serious and wilful misconduct of the worker, unless the injury results in the death or serious and permanent incapacity of the worker; or

(b) the disease known as undulant fever or brucellosis, unless a medical practitioner has certified in writing that he is satisfied as to the result of the pathological examination of the blood of the worker that the worker is suffering from that disease; or

(ba) coronary heart disease, a diseased heart valve, an aortic aneurism or a cerebral aneurism or any prescribed injury, unless the employment contributed to the disease or injury to a substantial degree; or

(c) any disease, including the disease mentioned in paragraph (b) , in any case where the worker, at the time of entering his employment, wilfully and falsely represented himself in writing as not having previously suffered from that disease.

(3) For the purposes of this Act, an employer is liable, subject to subsection (1) , to pay compensation pursuant to that subsection in respect of an injury suffered by a worker notwithstanding that the worker was, at the time when the injury was suffered, acting in contravention of any statutory or other regulation applicable to his employment, or that he was acting without instructions from his employer, if the act was done by the worker for the purposes of, or in connection with, his employer's trade or business.

(4) Where a person ordinarily engages in work in relation to the port or harbour operations at a port or harbour and in connection with that work persons customarily attend at pre-arranged places for the purpose of being selected and engaged for employment in that work, then, in relation to any contract of service by which that person is engaged in that work-

(a) any such place shall be deemed to be a place of employment; and

(b) attendance at any such place for the purpose of being so engaged or otherwise in connection with the employment, shall be deemed to be attendance at a place of employment in pursuance of that contract-

and, in the application of this Act to the person's attendance at such a place, a contract of service by which, on any occasion, he is engaged for employment at such a place shall be deemed to continue until the next occasion on which he is so engaged.

(6) For the purposes of this section, an injury does not arise from a worker's employment if it occurs -

(a) while the worker is travelling in either direction between the worker's place of residence and the worker's place of employment, except where that journey occurred -

(i) at the request or direction of the employer; or

(ii) if the journey is work related, with the authority (expressed or implied) of the employer; or

(b) while the worker is travelling between places where the worker is employed by different employers; or

(c) while the worker, on a working day, is temporarily absent from the worker's place of employment, except where that absence occurs at the request or direction, or, if it is work related, with the authority (expressed or implied), of the employer; or

(d) during a social or sporting activity which takes place away from the worker's place of employment, except where the worker's involvement in that activity forms part of the worker's employment or is undertaken at the request or direction, or with the authority (expressed or implied), of the employer.

(7) For the purposes of subsection (6)(a)(ii) , a journey is not work related by reason only of the fact that it is for the purpose of enabling a worker to travel -

(a) to his or her place of employment from his or her place of residence; or

(b) to his or her place of residence from his or her place of employment.

(8) No compensation is payable to a worker under this Part in respect of any disease for which he or she is entitled to compensation as an employee under the Workers' (Occupational Diseases) Relief Fund Act 1954 ."

3 The Tribunal answered the question in the affirmative determining the injury arose "in the course of" the respondent's employment.

4 By this appeal the employer contends that the Tribunal erred in so determining.

5 The appellant raises 6 challenges to the Tribunal's decision. The grounds are prolix. They are:

"1. The learned Chief Commissioner erred in law in making the findings that the Respondent's "injury occurred in the course of his employment with" the Appellant (at [69]) and that his 'injuries arose in the course of' that employment (at [70]).

Those findings were not open to the learned Chief Commissioner upon the evidence if she had correctly applied to that evidence settled principles of law stated by the High Court in Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246, in particular at [36]-[39], which she did not do.

2. Correctly applying the principles stated by the High Court in Comcare v PVYW, in particular at [36]-[39] as to the correct application of the 'Hatzimanolis principle', the only findings reasonably open on the evidence are that:

(a) what the Respondent was relevantly doing when injured, was climbing onto or over a log while in charge of a dog on a lead, causing him to slip and fall;

(b) the injury was brought about by that activity, specifically, by slipping and falling while attempting to climb onto or across a log while in charge of a dog on a leash;

(c) the injury was therefore one that occurred while the Respondent was engaged in an activity, not one that occurred by reference to a place;

(d) the relevant enquiry was therefore whether the Appellant induced or encouraged the Respondent to engage in that activity;

(e) the Appellant had not expressly o. r impliedly induced or encouraged the Respondent to engage in that activity; and

(d) therefore, the Respondent's injury did not arise m the course of his employment.

The learned Chief Commissioner erred in failing to come to those findings because having accepted (at [65]) that what the Respondent was doing when he was injured was climbing onto or across a log while walking his dog in company with his partner (to which it is necessary to add the evidence that he was at the same time handling his dog on a leash, at [8]), she then failed to properly address 'the essential inquiry' as to how the injury was brought about, or failed to address that enquiry at all, because she failed to address that question (at [66]) to any degree in the context of the activity being engaged in by the Respondent when the injury occurred.

3. The learned Chief Commissioner erred in making findings of fact for which there was no supporting evidence (including evidence from which an inference as to the facts found could reasonably be drawn), that is:

(a) (at [66]) that walking along the Tullah lakeside would have been a recognised practice for workers required to work at Tullah;

(b) (at [66]) that walking along the Tullah lakeside would have been recognised as an acceptable activity by the Appellant;·and

- walking along the Tullah lakeside, or taking a walk along the Tullah lakeside (at [66]);

- doing so in the company of his partner (at [67]);

- taking a walk in the Tullah area with his partner and dog (at [69]),

were activities in which the Appellant induced or encouraged the Respondent to engage or were activities that were "within the scope of' such activity, and without defining the 'scope' of such activity so as to explain the factual finding that those activities were within that ' scope'.

4. The learned Chief Commissioner erred (at [60]) finding that "[w]alking in the Tullah area whilst remaining within mobile phone reception and ensuring that he could attend work within 15 minutes [being] entirely consistent with the worker's obligations to the employer .... provide[d] the necessary nexus between the activity he was performing at the time of the injury and his employment".

That finding failed to correctly apply to the facts established by the evidence the 'Hatzimanolis principle' according to Comcare v PVYW.

By approaching the question of the 'necessary nexus' in the way that she did (at [60]), the learned Chief Commissioner failed to properly make the necessary enquiries, including, as to what it actually was' that the worker was doing when injured, how the injury was actually brought about while engaging in that activity ('the essential enquiry'), and the presence or absence of inducement or encouragement to undertake that activity.

5. The learned Chief Commissioner erred in law at [69] when she purported to apply "the test in Comcare v PVYW'' in coming to the conclusion that the Respondent's injury occurred in the course of his employment with the Appellant based on a finding that the activity engaged in by the Respondent when his injury occurred was "within the scope of' activity that the employer had encouraged or induced the worker to undertake.

Once it was clear that an activity was engaged in at the time of injury, then in order to properly apply the 'Hatzimanolis principle' according to Comcare v PVYW at [36]-[39], the learned Chief Commissioner had to address not merely the evidence that the Respondent "was taking ,a walk in the Tullah area with his partner and dog" and whether that was "within the scope of activity" in which the Appellant had induced or encouraged the Respondent to engage - she had to undertake a more focussed enquiry as to what the employee was actually doing when injured, and how the injury was brought about while engaging in that,activity.

By taking the approach that she did, the learned Chief Commissioner failed to make those more focussed enquiries. A proper analysis of the evidence that provided the answers to those enquiries should have focussed on, and identified, the activity that was actually engaged in when injury occurred, that is, the Respondent's climbing onto or over the log, while walking on the lakeside to just pass the time, and what it was that brought the injury about, that is, slipping on and falling onto the log.

Had the learned Chief Commissioner correctly undertaken those enquiries, which would have provided those answers, the only finding reasonably open was that the Appellant had not expressly or impliedly induced or encouraged the Respondent to engage in the activity that brought about the injury in the way that it was brought about, with the result that the necessary factual connection or association between the circumstances of the Injury and the Respondent's employment was absent.

6. The learned Chief Commissioner erred in coming to the conclusion she did by emphasising what she perceived to be " the general nature, terms and circumstances of the employment" to the point where, contrary to what the High Court said in Comcare v PVYW (at [19]), she gave those factors (albeit not clearly defined by any finding of fact anywhere in the reasons for the decision) determinative weight to the substantial exclusion of the 'essential enquiry', identified as such at [38] in Comcare v PVYW, as to how the injury was brought about, together with the related enquiry as to what the Respondent was doing when injured, and ultimately, to the exclusion of the' determinative enquiry as to whether the Appellant expressly or impliedly induced or encouraged the Respondent to engage in that particular activity.

That the learned Chief Commissioner followed that erroneous path is evident at [29], [31], [66], [67] (including the non-specific reference to Hatzimanolis in footnote 9), [68] and [70].

By taking the approach that she did, the learned Chief Commissioner failed to identify that the nexus required by the proper application of the 'Hatzimanolis principle' according to Comcare v PVYW is between the activity engaged in by the worker when the injury occurs and express or implied inducement by the employer to engage in that activity, and she therefore failed to properly address the questions of what that activity was and whether the Appellant had induced or encouraged the Respondent to engage in that activity."

6 The overlap in the grounds is obvious. Ground 2 is a submission which identifies findings said to be open on the evidence upon a correct application of the law. The grounds can be reduced to the following:

1 The Tribunal erred in law in making the findings that the respondent's injury occurred in the course of his employment with the appellant, because that finding was not open on the evidence, upon a correct application of the law.

2 The Tribunal erred in making findings of fact for which there was no supporting evidence specifically that:

(a) Walking along the Tullah Lakeside would have been a recognised practice for workers required to work at Tullah;

(b) Walking along the Tullah Lakeside would have been recognised as an acceptable activity by the appellant; and

(c) Such activities were within the scope of activities the appellant induced or encouraged the respondent to engage in, while failing to define the scope of such activity so as to explain the factual finding that those activities were within the scope of such activity.

3 The Tribunal erred in finding that the appellant had induced or encouraged the respondent to engage in the activity which resulted in the injury.

4 The Tribunal erred in its application of the principles identified in Hatzimanolis as explained in Comcare v PVYW [2013] HCA 41, 250 CLR 246.

7 The circumstances giving rise to the claim for compensation are conveniently contained in the Reasons for Decision of Chief Commissioner Clues (as she then was):

"[1] At or around 11:00am on Friday, 25 May 2018, the worker slipped and fell on a wet log whilst walking along Tullah lakeside with his partner and his dog. He suffered a fractured femur of the left leg (the injury).

[2] At the time of the injury the worker was employed by the employer as a relief area coordinator. According to the statement of Jamie Young dated 19 June 2019 (W8) the worker:

(a) was on call at the employer's Tullah accommodation in the western part of Tasmania.

(b) commenced a 7 day shift on Thursday, 24 May 2018 and was on call during this period.

(c) received an on call allowance for each day of the shift.

(d) resided in accommodation in Tullah provided by the employer.

[3] The employer's basic requirements for on call workers are that they must:

(a) answer the phone/respond to a call within 15 minutes of notification.

(b) be in a position to respond (leave home to attend site) within 15 minutes of phone notification.

(c) be fit to drive and rested to levels to enable reasonable response.

(d) remain within suitable response times to the area of call coverage (i.e. not travel to the other end of the State).[1]

[4] The employer does not limit activities performed by workers on call. They can spend time with family, play sport and the like "as long as they can take a call, or call back quickly and leave for work closely after then".[2]

[5] On or about 22 May 2019, the worker made a claim for workers compensation with respect to the injury.

[6] The employer has disputed liability for the claim on the basis that the worker's injury did not arise out of or in the course of his employment with the employer."

8 The competing submissions advanced before the Tribunal appear at [22]-[27] of the decision:

"22 In the worker's closing written submissions dated 21 December 2020, it was submitted on behalf of the worker that on the date of the injury he was on 'Availability Duty' and as a result he was employed to "be available for recall to perform work after normal working hours". It was his duty for which he was paid the sum of $68.15 to be available for recall. At the time of the injury he was doing the duty he was employed to perform.

23 At the time of the injury the worker had remained in Tullah and ensured that he walked in a place where there was mobile phone reception so that he could be contactable for recall, within 15 minutes and be ready to proceed to commence work, within 15 minutes of being contacted.

24 As a result he was 'inhibited to a degree in the activities he was able to perform; he could not do anything that might be inconsistent with his duty to be available for recall within the times set out in his contract of employment'. [Footnote omitted].

25 In the employer's closing written submissions dated 21 December 2020 the employer submits that the worker's injury was referable to the activity of walking his dog in company with his partner along the lakeside, and more precisely, he was climbing onto or across a log.

26 The employer further submits that the employer did not induce or encourage the worker to engage in that activity of taking a walk along the lakeside 'to just pass the time' in company with his dog and his partner and to climb onto or over a log during the walk.

27 Accordingly, the worker was not injured in the course of his employment because the employer did not induce or encourage the worker to engage in the activity he was engaged in at the time of the injury, nor did the employer induce or encourage the worker to be at the place where the injury occurred (namely the Tullah lakeside)."

9 The learned Commissioner concluded at [69] that:

"Accordingly, as to the activity in which the worker was engaged when his injury occurred, that is, taking a walk in the Tullah area with his partner and dog so as to remain in mobile phone contact with the employer in case he was called in to work, was within the scope of activity that the employer had encouraged or induced the worker to undertake. On this basis and applying the test in Comcare v PVYW (supra), the worker's injury occurred in the course of his employment with the employer."

10 It is not disputed that the injury was suffered in the course of an interval in the sense that the respondent was not engaged in actual work.

11 On appeal the respondent put its response on two alternative bases: first that he was injured while doing an act which formed part of a service to his employer because he was complying with the requirements of the employer to be available on stand-by at Tullah, and able to respond within 15 minutes to a call-out; alternatively that the injury occurred in the course of his employment.

12 The Tribunal did not consider the case fell within the first limb of s 25 of the Act.

13 I will deal first with that issue. The respondent's employment duties are set out above. At the times he was required to be at Tullah on standby, the Respondent was compensated by way of a duty allowance (not salary) of $68 for each period he was required to be in that state of readiness to work. He contends that whilst on call he was inhibited in the activities in which he was able to engage, because he could not take himself off duty or outside an area within which he was available to respond to call outs by the employer. He submits that from a very early point in time it has been accepted within the jurisprudence of the workers compensation jurisdictions that those on standby pursuant to a requirement contained within their contract of employment are in fact engaged in work, referring to St Helen's Colliery v Hewitson [1942] A.C.59.

14 In some instances that will be so. It is not however a proposition which is established merely because a worker is at a place at the direction of his employer. In order for the injury to arise out of the employment, it must be established that a causal connection exists between the performance of the employment duties, including something incidental to those duties, and the injury. In my view the facts of this case do not engage that principle. Whilst the respondent was present in Tullah and within the required range to receive a call-out and respond at the time of the injury the respondent was engaged in personal recreation, walking the dog with his partner, and attempting to climb onto or over a log when he injured himself. It was the act of stepping onto a log that caused the fall that led to the injury. Factually it cannot be asserted that the requisite nexus between the employment and the injury is established. The causal nexus between act and injury is wholly unrelated to the performance of employment duties, even the obligation to be on standby. I reject the submission that the worker sustained an injury arising out of his employment. The Tribunal was correct to reject that submission.

15 Indeed this is precisely the factual scenario for which the second limb of s 25 of the Act was enacted.

16 The question of whether an injury was sustained in the course of employment can be difficult to answer. That difficulty was acknowledged by Snaden J in Dring v Telstra Corporation Limited [2020] FCA 699 (at first instance):

"[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] HCA 38; (1962) 107 CLR 353, 363 (Menzies J, with whom, in the result, Dixon CJ agreed; Owen J dissenting)."

17 The process of reasoning required was articulated in Hatzimanolis v ANI Corp Ltd [1992] HCA 21; (1992) 173 CLR 473, and further explained by the majority in Comcare v PVYW as above. In Comcare at pars [50]-[60] the principle articulated in Hatzimanolis and the order of reasoning required to correctly apply it is explained:

"... 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.

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."

18 A dichotomy is drawn between circumstances where an activity is engaged in at the time of injury, and circumstances where a worker is induced to be at a place and injury occurs[1]. In both circumstances the relevant issue is the employer's encouragement or inducement to the worker to either engage in the activity causing injury or to be at the place where injury occurred. In neither scenario is a worker compensated unless such an inducement is established on the facts. It is necessary to determine whether the case falls within the "activity" category of cases or the "place" category.

19 The appellant contends that this is an activity case; the respondent that it is a place case.

20 The approach required to be taken by the Tribunal was this:

1 Did the respondent suffer injury whilst not engaged in actual work for the appellant?

3 Did the injury occur at and by reference to the place where the respondent was? Or did it occur whilst the employment was engaged in an activity?

4 If the injury occured at and by reference to a place, did the employer induce or encourage the employee to be there? If the injury occurred by reference to an activity, did the employer induce or encourage the employee to engage in that activity?

21 Applying the decision in Hatzimanolis as explained in Comcare at [46], an employer is not liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but has "merely required the employee to be present at the place where the activity is undertaken":"the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do": Comcare (above) per French CJ, Hayne, Crennan and Kiefel JJ. There must be "a connection between the injury, the circumstances in which it occurred and the employment itself": Comcare at [36], at 261. The "source" of liability to the worker is the "inducement or encouragement" to the employee "to be present at a particular place or to engage in a particular activity": Comcare at [35], . But "the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do": at [35], . There are policy reasons for this because unless that connection exists the employer is not "the insurer for the employee during..." that time: Comcare (above) at [9].

22 The nexus required between the circumstance and the injury (whether place or activity case), can be severed and the emphasis is thus squarely upon identifying the act which caused the injury in the context of the employment duties, meaning the things required by the employer directly or incidentally, to see whether the required connection exists.

23 It is critical for the purposes of s 25 of the Act to identify with particularity the act causing injury. The correct characterisation of the matter turns on the facts. That proposition is demonstrated by two cases. In Westrupp v BIS Industries Limited [2015] FCAFC 173, a worker was employed as a silo operator in a mining town north of Kalgoorlie in Western Australia. He worked to a roster of two weeks on duty, followed by a week off. When he was working he was accommodated in a mining camp. He suffered a shoulder injury whilst he was at a tavern to meet a friend and have a beer. That activity was not for any purpose related to his employment. The Administrative Appeals Tribunal refused his claim for compensation for the injury. On appeal to the Full Court of the Federal Court the appeal was upheld. The Court said at [67]:

"If Mr Westrupp had been injured by a fire at his quarters while sleeping (Danvers) or whilst showering (Comcare v McCallum (1994) 49 FCR 199 ('McCallum')) or had been struck by a car while returning to his accommodation (Mather; see also Watson v Qantas Airways Ltd [2009] NSWCA 322; (2009) 75 NSWLR 539) ('Watson')) or had been assaulted by strangers while returning to his quarters after a meal and a few beers (Kennedy v Telstra Corporation (1995) 61 FCR 160 ('Kennedy')), then, on the authority of Danvers, and cases in this Court and in other courts which have applied Hatzimanolis, he would have been entitled to compensation. We do not understand those authorities to have been overruled, expressly or by implication, by PVYW. The circumstances of the present case, in our view, are not materially different.

In our view, the AAT's approach was too narrow. It paid insufficient attention to the general nature, terms and circumstances of the employment. It gave too much prominence 'to the circumstances of the particular occasion' (Hatzimanolis at 484) and 'focused just upon the occasion giving rise to the injury' (PVYW at [33]). When it is recognised that Mr Westrupp was only in Leinster, and at the camp, as an incident of his employment, that he was under the control of the first respondent throughout his time in Leinster, and that he was or would be expected to use facilities put in place by BHP Billiton, for which the first respondent took the benefit for its own employees as incidents of their engagement, then it seems to us, with respect, that the AAT misapplied the legal principles which govern the proper statutory construction to be given to s 5A of the SRC Act." (My emphasis).

24 That conclusion turned upon the workers utilisation of recreational facilities provided by the employer which he was expected to use and could be expected to use. This provided the necessary connection between the circumstances of the injury and the employment.

25 In Dring v Telstra Corporation [2021] FCAFC 50, a worker slipped and fell outside a bathroom near the reception area of the hotel in which she was staying. She was attending a workshop organised by her employer and the employer had booked her into the hotel. The court was called upon to consider the question of whether an injury arose out of the course of the employment. In this case the court found that it did not. The Full Court of the Federal Court considered three decisions for the purpose of its ruling: Hatzimanolis: Comcare: and Westrupp. At 31, Flick J said this:

"The more substantive reason for rejecting the submission advanced on behalf of Ms Dring is that, again with great respect to those who advanced the contrary view, none of the trinity of cases - i.e., Hatzimanolis, PVYW (Comcare) or Westrupp - support any conclusion that any injury suffered by an employee at a 'place' at which the employer required the employee to attend was necessarily an injury suffered 'in the course of employment'".

26 Each of these cases involve factual scenarios where injury occurs during an interval at a place where the employee was induced to be by the employer. Each produced a different result for the worker. At the risk of repetition, the determinative factor in Westrupp was that the employer's provision of the recreational facility constituted an inducement to the worker to be at the place such that his presence there to recreate, was within the course of the employment. In Dring while the employer organised the accommodation, there was a material separation between that fact and the injury, characterised by the worker's consumption of alcohol at a dinner. Her fall, though at a place arranged for her by her employer, lacked the requisite connection with the employment to have occurred in the course of her employment.

27 And in Humphrey Earl Ltd v Speechley [1951] HCA 75; [1951] 84 CLR 126, it was held that whilst taking lunch was not part of the workers duties, and though the conditions of employment may have made that activity incidental to it, if the worker "so far deviates" on a purpose of his own, the purpose would not be one which occurred in the course of his employment.

28 I have already set out the evidence with respect to the respondent's activities at the relevant time. I find that this is an "activity" case. Did the employer induce or encourage the act causing the injury? It did not. Within the course of a recreational walk he slipped and sustained injury attempting to climb over or onto a log. That is the relevant causal act. There is not the required causal connection between the requirement to be in Tullah and within the mobile phone coverage zone. The proposition that there was "nothing exceptional" about the respondent walking along the Tullah lakeside on the date of the injury, and that it was not foreign to the appellant's interests is not material. What is material is the fact that the respondent was engaged in a recreational activity at his own volition and for his own purpose and in the course of that activity sustained the injury. I conclude that there is nothing in the evidence which sustains a conclusion that the respondent was injured in the course of an activity induced or encouraged by the employer. Accordingly in my view the injury falls outside of the concept of an injury occurring in the course of employment, and is not compensable.

29 The conclusion articulated by the Tribunal at 69 is wrong. The Tribunal erred when it concluded that the respondent's injuries arose in the course of his employment with the appellant.

30 I uphold grounds 1, 4, 5 and 6. It is unnecessary to decide grounds 2 and 3.

31 I order that the Respondent's application to the Tribunal in proceedings No. W/2019/843 is dismissed.

[1] For completeness the observation made In Westrupp v BIS Industries Limited [2015] FCAFC 173 at [53] should be included in this discussion. In that case it was said that there is "the obvious possibility for overlap on the facts of particular cases"; meaning that, in some cases at least, the injury may have been referrable in some way not only to the place, but also to the activity that was being engaged in at that place at, or around, the time the injury was suffered". The contention implicit in the parties' submissions to this Court that any given case can only be either a place case, or an activity case, but not both, is not supported by the authorities. The issue is one of fact. No difference in approach is indicated.