James v The State of South Australia

1. Ms James says that on the morning of 12 November 2014 she made a telephone call to a person at the Staff Daily Replacement Office (SDRO) of DCSI to say she was unable to work that night and the following night.[8] SDRO is part of the premises known as the Strathmont Centre which is located at Oakden. The Strathmont Centre is a facility designed to assist people with intellectual and physical disabilities. Some of DCSI's administrative work is performed at SDRO.
2. Ms James also says that after telling an SDRO employee she was unable to work in a telephone call, she then asked to speak to Mr Jonathan Gabriel Steinhauer, acting team leader of SDRO at the time.[9] It was her evidence that she asked Mr Steinhauer for two days off work to be treated as annual leave. She asked for annual leave as her entitlement to sick leave was exhausted.[10] Ms James gave evidence that in response, Gabe, whom she and others at DCSI referred to Mr Steinhauer as, said:

"That's fine Jo, you just need to come in and fill in the forms."[11]

1. It was the case for the State that Ms James did not call and speak to anyone at SDRO, including Mr Steinhauer, on 12 or 13 November 2014.
2. Ms James was cross-examined on this topic and maintained her version of events. She was "pretty sure" the words she attributed to Mr Steinhauer were his exact words.
3. Mr Steinhauer was taken by DCSI as denying that he spoke with Ms James at all, but the evidence establishes this is not an accurate interpretation. Mr Steinhauer's statement of evidence provides:

"I do not recall a conversation with her and I do not recall knowing about the injury to her arm or upper body area prior to her coming in that day.

I did not tell the worker to come in that day and as far as I am aware nobody else did from the office."[12]

1. It is apparent there is an important difference between the two sentences quoted. The first sentence is to the effect he had no recollection of talking to Ms James. That is not the same as saying he did not talk to her. In the first sentence he says that he cannot say with certainty whether he had a conversation with her or not, or whether he told her to come in to work or not. In the second sentence he asserts that he did not tell her to come into work on that day. The two sentences are not compatible.
2. The problem is not just one of semantics. Mr Steinhauer was crossexamined about the basis of his statement of evidence. It transpires that he was interviewed by an investigator about this matter in January 2015, some two months after Ms James' fall. The investigator converted a question and answer record of interview into a narrative. The original record of interview was put to Mr Steinhauer in cross examination. It reads:

"Q: The worker claims you asked her to bring her forms in that day. Is that right?

A: That is what I have been told what she has claimed. Jo James is a long standing employee and aware of the several ways in which forms can be brought in, via email, via fax machine, obviously in person. As I said, I do not recall a conversation where I told her come in at a specific time and bring in forms or whether I told her to bring in forms at all. I do not recall knowing about the injury to her arm or upper body area prior to her coming in and physically presenting herself in a sling to me.

Q: So you didn't tell her to come in that day?

A: No.

Q: Anybody else from this office tell her to come in?

A: If they did I am unaware of it."[13]

1. In the first answer quoted, Mr Steinhauer says he does not recall a conversation "where he told her to come in at a specific time" with the forms or whether he told her to bring in the forms at all. Mr Steinhauer does not answer the first question directly, but rather describes the various ways Ms James could have submitted the forms. It is an evasive answer. The first answer also leaves open the possibility that Mr Steinhauer did tell Ms James to come into work with the forms. In the second answer, Mr Steinhauer denies that that he told Ms James to come into work on that day (underlining added). The second answer is very different to the first answer in both meaning and in the form or style of the answer. The second answer is a one word response to a leading question. Despite that, the second answer leaves open the possibility Mr Steinhauer did tell Ms James to come into work with the forms, but did not say when she should do so.
2. It makes sense that Mr Steinhauer would not tell Ms James when she needed to attend work and submit the forms. Doing so was for her benefit, not that of DCSI, so she could be paid on time. The second answer quoted from the record of interview is not consistent with the first answer.
3. There is a clear non-sequitur within the quoted parts of both Mr Steinhauer's record of interview and his statement of evidence.
4. The investigator took the first answer to mean Mr Steinhauer had no conversation with Ms James when the first answer is not to that effect. One can understand how this happened. The first answer is ambiguous and capable of many interpretations. There are multiple parts to the answer and it is possible that without the benefit of being able to see the answer on paper at that time, the investigator misunderstood or over-simplified what was said.
5. In cross examination, Mr Steinhauer acknowledged that it was possible that he had spoken with Ms James about annual leave prior to her attending SDRO.[14] There is other evidence that makes it very likely that Mr Steinhauer did ask Ms James to attend SDRO to deliver the forms.
6. Yvette Megan Graetz is a resource co-ordinator employed by DCSI. She works in SDRO. She was called to give evidence on behalf of DCSI. Ms Graetz's statement of evidence provides:

"I recall the worker Jo came into the office the day before the end of sign off, which would have been the 13th November and brought in some paperwork regarding some leave they (sic) she had had. Gabe told her to bring it in before the pay period so she would get paid."[15]

1. While Ms Graetz's statement does not make it completely clear that she knew of her own knowledge that Mr Steinhauer had asked Ms James to come into work, Ms Graetz's oral evidence certainly did:

"Did you - before Ms James attended the place - SDRO on that day, did you know that she had been asked to come in?---Yes, I - I overhead the phone call with Gabe and he then came out to the office after to my desk and said to me that Jo is coming in to fill out her paperwork. Could I please give her a hand and I said yes.

And when did that phone call happen?---Timewise, maybe half an hour before Jo came in.

Okay. And, now, you said you overheard the conversation, the telephone - - -?---Yes."

1. There was also the following exchange soon after in cross examination:

"So what did you hear of the conversation?---I just heard Gabe say to Jo, 'That you will need to come in and fill out your paperwork' because that's all about - - -

Okay. What was it about the phone call that made it clear that it was a phone call to Jo rather to any other person?---Because Gabe had followed through and said, 'I've just been speaking to Jo. She's on her way in. She's coming in to fill out her paperwork' 'cause that's what I - - -"

1. Ms James was a good witness. She was direct, considered her answers carefully, and I formed the view she was being honest and candid. It was apparent that she takes her work obligations seriously. Her knowledge of DCSI procedures was detailed and I find that she would have taken a request to submit the forms in person seriously and literally. There are only two issues where I have a reservation about her evidence. The first is whether she spoke to Mr Steinhauer by telephone on 12 November as she said, or whether it was on 13 November as Ms Graetz said.
2. Ms Graetz also presented in an open and candid way and I accept her evidence subject only to one reservation, and that is also in relation to whether the telephone conversation between Ms James and Mr Steinhauer was on 12 November or 13 November.
3. In suggesting I should prefer Ms James' account to that of Ms Graetz, Mr Black, counsel for Ms James submitted that it would have taken Ms James more than the half hour Ms Graetz estimated passed between the call and when Ms James attended work to get from her home at Osborne to SDRO. That is probably true, but Ms Graetz was not being literal or categorical about the timeline when giving oral evidence.
4. In her statement of evidence, Ms Graetz estimates when Ms James came into SDRO because it was "the day before the end of sign off."[16] Ms Graetz is correct about the date the fall occurred, but it is possible that she has reconstructed events by reference to the end of sign off and may have folded or conflated the events of two days into one day.
5. It is also possible that Ms James is mistaken and both her telephone call to Mr Steinhauer and the attendance at SDRO were on the same day. That is less likely than Ms Graetz being mistaken in my view as Ms James has been acutely aware of the events in question as they have far more significance for her than for the other witnesses. Mr Steinhauer and Ms Graetz were first interviewed about this matter in January 2015, two months after the event.
6. In the end result it is not necessary to prefer either Ms James or Ms Graetz on the timing of the phone call to Mr Steinhauer.
7. I find that Ms James was requested by Mr Steinhauer to present forms at SDRO so she could take annual leave for her absence from work on 12 and 13 November 2014 and so she could receive her usual fortnightly pay. Contrary to his evidence, I also find that Mr Steinhauer did know about the injury to Ms James' arm prior to her lodging the forms. He admitted to that possibility in cross examination.[17]
8. Mr Steinhauer was an acting team leader at the time in question and he was dealing with new procedures and a relatively high level of additional responsibility.[18] It is not surprising then that his recollection of the events surrounding Ms James' fall on 13 November 2014 is inaccurate.
9. There are other good reasons why Ms James should be preferred to Mr Steinhauer in relation to most of the issues they differ about.
10. Mr Steinhauer was probably worried he would be criticised for telling Ms James to attend work to drop off the forms given that she hurt herself doing so. He was working in an acting team leader role and presumably wanted to perform well while doing so. It is apparent DCSI took Ms James' fall and the claim arising from it very seriously. Mr Steinhauer was told not to speak to Ms James about the matter after the fall. Ms James' claim for compensation was submitted on Thursday 14 November and was rejected within three working days. That is a very short time in which to determine a claim which was far from routine.
11. Mr Steinhauer thought Ms James wanted to deliver a claim for compensation for the injury to her left shoulder at work on 16 October 2014 rather than deliver the forms. He acknowledged this in both his record of interview and in cross examination.[19]
12. Mr Steinhauer's mistake about what documents Ms James wanted to deliver on 13 November explains why he asked her to attend work to deliver those documents. His evidence was that a personal attendance was usually not required to deliver leave forms and timesheets. However, he asked her attend DSRO to do so. The likely explanation is that he thought she was delivering claim forms, not a leave application and timesheet, and therefore she should attend in person to do so.
13. I prefer Ms James' account of her interactions with Mr Steinhauer over his account with one exception. Ms James is probably mistaken in asserting that Mr Steinhauer signed the forms and put them on a machine after she gave them to him. Mr Steinhauer said he did not sign the forms and that he placed them on a tray, not a machine. I accept and prefer his evidence in this regard. His signature is not on the forms.
14. There was varying evidence about the date by which Ms James needed to submit the forms in order to be paid on time. The variance was in part because that date had changed, and in part because there was some element of flexibility about it. I find that if Ms James did not submit the forms on 13 November 2014, there was a chance she may not have been paid on time. Ms James made it very clear that she relied on being paid on time to sustain her children and her household as a single supporting parent and I accept her evidence in that regard.[20] In any event, Ms James was told to submit the forms in person. It matters not when she did so.
15. There was evidence of other ways Ms James could have submitted the forms. Mr Steinhauer said that the forms could have been emailed or faxed. The forms in question could be accessed on the DCSI intranet which can be accessed at the homes of some residents. Ms James worked at those homes, which are owned by DCSI,[21] but she was not assigned to a particular home. It was her role to relieve when other carers were unavailable. For this reason she said it was not appropriate for her to visit a resident's house when not working there on a regular basis to submit forms or papers for her own purposes. Mr Steinhauer and Ms Graetz did not disagree with her in that regard and I accept her evidence on the point.
16. Ms James gave evidence that in addition to submitting timesheets in person, she had on occasion sent them by facsimile.[22] However this was done from a resident's home while she was working there. There is no evidence that Ms James had the ability to fax forms from her home to SDRO.
17. When she attended at SDRO on 13 November 2014, Ms James completed both a leave form and her timesheet before handing them in.
18. The timesheet, which covers the period 1 November to 14 November, was partly completed by computer.[23] Ms James added by hand the dates on which she worked and the cost centre number - a four digit code which identifies the residence in question. She initialled each entry on the timesheet. The words "Annual leave" appear in a column against the dates 12 and 13 November 2014.
19. The leave form is called a "Recreation/Long Service Leave/Skills and Retention Leave Form". It was signed by Ms James on 13 November 2014.[24]
20. I find that Ms James understood that to be paid on time, she needed to attend at SDRO in person and that she did so in reliance upon Mr Steinhauer telling her she needed to come in to fill in the forms.

1. Ms James completed the claim for compensation which is the subject of this proceeding on the evening of 13 November 2014. In it she asserts that she tripped and fell on uneven concrete while walking on an uneven footpath on the premises of the Strathmont Centre after delivering the forms. The parties agree that the land on which Ms James fell is part of the Strathmont Centre and is land which comes within the definition of "place of employment" found in s 3 of the Act.[25]
2. There is no suggestion and no evidence that Ms James did not fall as described by her. She returned to SDRO a few minutes after leaving there in tears and looking dishevelled. I find the fall occurred where and how she claimed it did.
3. In response to her claim of 13 November 2014, by decision dated 19 November, DCSI determined to reject the claim. The decision contains some six reasons for rejecting the claim including the assertion Ms James was on a rostered day off. That is a strange assertion given she was due to work later that same day.
4. After her claim was rejected, Ms James contacted, or attempted to contact Mr Steinhauer to point out she was at SDRO at his request:

"Can you tell his Honour the circumstances of any telephone calls you had with Mr Steinhauer after you knew that your claim had been rejected?---Okay. It would have been either the 19th or 18th perhaps I'm not 100 per cent sure of the date it was after I'd found out that it had been rejected and they had said I didn't have a reason to be there. I called him and I was distressed and I think I was crying at the time and I said to him,

'Do you remember last week when I asked for the annual leave and you told me to come in and fill in the forms? Can you please tell them that's why I was there?'

Do you recall what his response was?--He said he wouldn't do it."[26]

1. Ms James says that she spoke with Mr Steinhauer twice to try and remind him how she came to be at SDRO on 13 November.[27] She also said she had probably received the letter which rejected her claim for compensation by the time she spoke with him.[28]
2. Mr Steinhauer's evidence was that after 13 November, he had no direct communication with Ms James about the fall.[29] He said he received two messages to call her from staff members. On the first occasion he did not return the call as he had been instructed not to speak about the incident. On the second occasion, he says he was told Ms James wanted him to put something in writing to the effect he had told her to come in and fill in the forms.[30]
3. On this subject there is again a discrepancy between the accounts of Ms James and Mr Steinhauer. For reasons given earlier, I prefer Ms James' account. Also, Mr Steinhauer was told not to talk to Ms James after her fall. It is therefore not surprising that he did not wish to admit doing so.

"30 - Compensability of injuries

(1) Subject to this Act, an injury is compensable if it arises from employment.

(2) Subject to this section, an injury arises from employment if -

(a) in the case of an injury that is not a secondary injury or a disease - it arises out of or in the course of employment..."

1. None of the injuries sustained by Ms James fall within the definition of secondary injury or disease found in s 3 of the Act. As such, Ms James must bring her injuries within the meaning of s 30(2)(a) in order to receive compensation under the Act.
2. In Comcare v PVYW[31] a worker was injured during a visit to a regional office of her employer at her employer's request. She stayed overnight at a motel which had been booked by her employer. During the stay she sustained injuries whilst engaged in sexual intercourse when a light fitting above her bed was pulled from its mount and hit her on the head.
3. PVYW required the High Court to revisit the law in relation to injuries which occur during intervals between periods of employment.
4. In an earlier 'interval' case, Hatzimanolis v ANI Corporation,[32] the High Court noted:

"Moreover, Oliver and the cases which follow it show 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.' Danvers (1969) 122 CLR, at p 537."[33]

1. In PVYW, the court below held that the relevant nexus or connection with employment came through the worker being required to stay in the motel where she was injured. There was a temporal relationship between the worker's attendance at the motel and her employment and the employer had encouraged or induced the worker to stay at the motel.[34]
2. The High Court noted there was a problem with that approach:

"If this is what Hatzimanolis conveys, it means that, absent gross misconduct on the part of an employee, an employer who requires an employee to be present at a particular place away from their usual place of work will be liable for any injury which the employee suffers whilst present there. It means that the employer has become the insurer for the employee during the time that the employee is at the place. That would be so even though the injury was suffered in the course of an activity which was clearly unrelated to the employment."[35]

1. The majority in PVYW held that the interpretation given to Hatzimanlis by the court below was wrong.[36] While an employer's encouragement or inducement to a worker to do a particular activity or be in a particular place may create an interval according to Hatzimanolis, more is required. The employee must be acting on the encouragement or inducement given by the employer when injured:[37]

"It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs."[38]

1. Next the majority in PVYW set out all the steps required to determine whether an injury was sustained in the course of employment in keeping with Hatzimanolis.[39] First the injury needs to be sustained while the employee is not engaged in actual work. Second it must be established what the employee was doing when injured:

"(t)he employee must have either been engaged in an activity or present at a place when the injury occurred."[40]

1. Whether the connection is through the performance of an activity or by being present at a place determines the next question to be asked:

"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."[41]

1. An employer's inducement or encouragement to be at a particular place is not relevant if at the time of sustaining injury, the connection with employment is through the performance of an activity. In such a case, the employer needs to have encouraged the worker to do the activity during which injury occurred for the injury to be compensable.[42]
2. When the connection with employment is through the place where injury occurs, a different test is required:

"To identify the relevant connection does not raise any question about causation. It simply identifies the circumstance in which the injury is suffered. It is that circumstance which must be the subject of the employer's inducement or encouragement."[43]

1. The majority then give an example of a connection with employment through the worker being in a particular place:

"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 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."[44]

1. Counsel for the State, Mr Ikonomopoulos, placed much reliance upon Peet v Workers Rehabilitation and Compensation Corporation.[45]
2. In Peet, the worker claimed for an injury described as "pain in chest." As part of its assessment of the claim, the compensating authority required him to undergo bone scans and a serological examination at a hospital. He did so, and in the course of re-attending the hospital on the same day of the tests to pick up the results, he slipped and injured his left knee.
3. All three members of the Full Supreme Court agreed with that part of the decision below which found that s 30(3)(e) of the Act, a statutory extension of the course of employment to cover attendances to obtain a medical certificate or report, did not apply to the attendance as the "pain in chest" injury had been rejected and was not compensable.
4. The other basis on which the claim was put by Mr Peet was that his injury nonetheless arose "out of or in the course of employment." In that regard, Doyle CJ, with whom Duggan J agreed stated:

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

And one must always bear in mind, as the majority said in Hatzimanolis (at 484): 'In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen' Danvers (1969) 122 CLR at p.537."[46]

1. In relation to any potential connection between employment and the purpose of Mr Peet's attendance, Doyle CJ noted:

"There is no suggestion that the employer required the worker to attend at Calvary Hospital. Nor, as far as I can tell, would his failure to submit to the examination have any significant impact upon the employer's interests. Nevertheless, in a general way one would say that co-operation by a worker with the Corporation is in the employer's interests and would be encouraged by most employers."[47]

1. Doyle CJ did not consider Mr Peet's injury to have been sustained during an interval occurring in a period or episode of work,[48] nonetheless having regard to Hatzimanolis and Danvers, his Honour went on to decide whether Mr Peet's attendance at hospital to pick up his test results was part of his employment.[49]
2. Although Doyle CJ noted that in present times, the entitlement to workers compensation is "an almost universal aspect of employment", he was not satisfied that this meant the pursuit of workers compensation benefits formed part of the course of Mr Peet's employment:

"But in the end one must return to the basic concept, the course of employment. When the worker sustained his injury he was not doing something in an interval within a working period or an overall period of work. In the ordinary sense of the word, his last period of work was some months ago. It seems impossible to me to characterise the time while he was off work as part of an overall period of work (to use the expression found in Hatzimanolis at 483) simply because it was a time during which he was claiming and in respect of which he claimed compensation."[50]

1. Ms James was asked by a manager to submit the forms in person so she could be paid on time and so she could be granted and paid leave to cover a two day absence from work due to an injury.
2. Mr Ikonomopoulos submitted that Ms James was delivering the forms for her own benefit and that there was nothing of benefit for DCSI in her doing so. While it is true the main reason for delivering the forms was so Ms James could be paid, and that is plainly for her benefit, her employer directed her to attend at a place of work outside of working hours to submit the forms. Being paid for one's work is a fundamental term of a contract of employment.
3. To construe the requirement that Ms James attend at work to deliver the forms as being for her benefit misses the point in my view. She had a lawful entitlement to be paid on time. She was not able to submit the forms by sending them from the residence she was scheduled to work at that night because she was unable to work. As a consequence, she made a telephone call to ascertain what needed to be done to be paid, and she was told she needed to deliver the forms to SDRO in order to be paid.
4. Mr Steinhauer could have directed some other way by which Ms James could have been paid which did not necessitate her attendance at SDRO.
5. I have found that Mr Steinhauer probably asked Ms James to attend work to submit the forms because he thought she was submitting a workers compensation claim rather than delivering the forms. Neither the reason for his direction nor the fact it was founded on a mistake is material. A direction was given by the employer, and Ms James followed it.
6. Prior to PVYW in this case it would have been argued that when injured, Ms James was doing something incidental to her employment, and that is sufficient to bring her injury within the course of her employment. After PVYW, applying such an approach would be stating a conclusion rather than following a test, and would likely result in error.[51]
7. Mr Ikonomopoulos submitted that Ms James was not injured while preparing the forms. In a literal sense that is true, but does PVYW intend that being hurt on the employer's premises while walking away after delivering the forms be excluded from coverage by the Act? On balance, I consider that it does. First, the majority in PVYW held the worker must be doing the "very thing the employer encouraged the employee to do when the injury happened."[52] Second, the majority also held that relying upon an action or step as being incidental to the activity being performed is no longer the way to approach matters like this. Third, the presence of another means by which a nexus with employment can be established, through the place where injury occurs, militates against stretching or extending the boundaries of the activity test.
8. Next it must be asked, is there a nexus between Ms James' injury and her employment because she was injured at SDRO, a place her employer had directed her to attend outside of normal working hours?
9. Ms James fell and sustained injury as a result of walking on an uneven concrete path at SDRO. She was directed to be at that place by her employer. Her injury was sustained by reference to that place and as a consequence of a defect she encountered at that place.
10. In PVYW the majority said:

"The place where an employee is required to be assumes particular importance when it is the cause of an injury or death."[53]

1. By way of example, the majority noted that if the light fitting above the worker's bed had fallen on the worker's head because it was not properly secured rather than being pulled loose, then the relevant connection would have been made out.[54]
2. In this case, a relevant connection is made out by virtue of Ms James being required to be in a place with a defect which caused her to fall and sustain injury. Although a relevant connection does not necessarily have to "raise any question about causation", where it does, it seems to me that a relevant connection will be made out.[55]
3. In Peet, although Doyle CJ did not consider that the subject injury was sustained during an interval occurring in a period or episode of work, his Honour still applied the operative test to the facts as he considered that the injury be construed as having occurred after a period of work.[56]
4. In this case there was no lacuna in Ms James performing work under her contract of employment as there was in Peet. As such, the often cited observation of the High Court in Hatzimanolis applies:

"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."[57]

1. Unlike Peet, in this case the attendance which resulted in injury had a direct nexus with employment, not with a statutory incident to employment. In Peet, the direction for the worker to attend Calvary Hospital for medical tests came from WorkCover SA or its agent. In this case the direction to attend DCSI came from the employer. Unlike Peet, here the interval between the periods of work either side of when injury occurred was small, some two days, and the contract of employment was operating according to its ordinary terms at the time. There had been no suspension or interruption of the terms of the contract of employment as in Peet where the worker had not performed work for the employer for three months prior to sustaining the relevant injury at Calvary Hospital. By comparison, Ms James was scheduled to start work less than twelve hours prior to being injured.
2. Mr Ikonomopoulos submitted that that the employer did not encourage or induce Ms James to be present at work on 13 November 2014. He said that the dictionary definition of 'encourage' and 'induce' should be had regard to. He noted that the definition of induce is "to cause or persuade".
3. In Hatzimanolis, the worker was a casual employee of the employer based at Wollongong in NSW. He was then engaged by the employer to work at a remote site at Mt Newman in WA. He lived and worked at a camp site there run by the employer. He sustained injury on a work free Sunday at Wittenoom Gorge in WA during an excursion organised by the employer for which the employer provided vehicles and food. The employer had invited the worker and other workers to "come along".[58]
4. It was held by the High Court that the invitation to Mr Hatzimanolis was an express or implied encouragement or inducement by his employer for him to partake in the excursion.[59] This was so despite the fact he was under no compulsion to undertake the excursion and he could have declined to do so without consequence.
5. The phrase "encourage or induce" reflects the presence of an invitation or offer made by an employer to a worker. Compulsion that a worker accept the invitation or offer is not necessary. What is required is that the employer's encouragement or inducement, express or implied, leads to the worker performing an activity or being at a place. That is sufficient to establish a relevant nexus with employment. Thereafter the other requirements specified in PVYW must also be satisfied.
6. The words "you just need to come in and fill in the forms" spoken to Ms James were in my view a direction to her to attend work to submit the forms if she wished to be paid. If that finding is wrong, those words were at least an invitation for Ms James to attend DCSI out of working hours to submit the forms. In either case, the words amounted to an encouragement or inducement for Ms James to attend DCSI. The State's submission on this point cannot be sustained.
7. The decision dated 19 November 2014 is set aside. I will hear the parties in relation to what orders should be made.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Workers Rehabilitation and Compensation Act 1986.

[2] Amended statement of evidence of Ms James, paras 5 and 6.

[11] Amended statement of evidence of Ms James, para 118 and tr 62, 41 - 43.

[31] [2013] HCA 41

[32] [1992] HCA 21; (1992) 173 CLR 473

[45] [1996] SASC 5757; (1996) 66 SASR 474

[51] PVYW [2013] HCA 41 para 19.

[56] [1996] SASC 5757; (1996) 66 SASR 474, para 32.

[57] [1992] HCA 21; (1992) 173 CLR 473, para 16.