Koutsouliotas v Royal District Nursing Service of SA Inc [2002] SAWCT 24

4 The worker had been employed with the RDNS as a permanent full time staff member since September 1997. Quite apart from his employment he was an active member of a social dance group by the name "Out Dancing". This group was formed for fun and fitness (AB 10). No payment was received from performances.

5 The first review night was conducted by the RDNS in 1999. The worker was heavily involved in this production together with Kym Jongebloed, the client relations manager for the Foundation (AB 11, tr 9). His role was as a volunteer. On the night the worker played a leading role as compare. The event was a great success (Exhibit A2).

6 The next year the Foundation advised the event would be repeated. The senior management, apparently of RDNS, were acknowledged and thanked for supporting the review (AB 42). Participants were advised that "as for last year all rehearsals need to occur after work hours, or if occurring during work time the time needs to be made up and negotiations need to be made with your supervisor."

7 The worker says he was spoken to by Kym Jongebloed about his participation in the 2000 review. He says she said to him "we would love to have Jackie back", the character the worker played in the 1999 review (AB 11). The worker says on this basis he believed the Foundation expected his participation in the review and that he was under something of an obligation in this regard (15).

8 Ms Jongebloed testified to the circumstances as follows (32):-

"Q You would accept, would you not, that Mr Koutsouliotas was a success with his involvement in the 1999 review.

Q And people were looking to him to be involved in the 2000 review and the lead up to that review.

9 This answer is to be understood together with her written statement (AB 30). That emphasised the event was fundraising as distinct from promotional (27). The involvement of RDNS employees was completely voluntary (AB 31). It was coordinated by the Foundation but acts were initiated by the employees of RDNS. In preparation for the 2000 review regular meetings were held at lunch times and attended by the worker. Two of these meetings occurred at the Veneto Club, the ultimate venue for the review (32). Each participant paid for his or her own costume for the night.

10 On the evening of 27 March 2000, the worker was injured when rehearsing two dances for the review. He was also rehearsing other dances forming part of the "Out Dancing" repertoire and not intended to be performed at the review. However he says he suffered his injury while rehearsing one of the review dances (AB 18).

11 One last matter referred to by the worker was the difficulties presented by the stage dimensions at the Veneto Club. These were very narrow. The worker had to rehearse at the Centre of Performing Arts within an equivalent space (19). He says this contributed to his having the accident. The choice of the Veneto Club was RDNS' decision.

12 I deal with the applicable law apart from s 30(4). That is whether this injury arose out of or in the course of employment in the correctly understood sense. In Kop v The Home For Incurables (1970) SASR 139, Bray CJ stated (143 - 144):-

"... To arise out of the employment it is sufficient that the fact of the workman being employed in a particular job caused, or to a material extent contributed to, the injury, even if the injury was caused when the workman was doing something he was not bound but only permitted to do (Mallyon v. F W Hughes Pty Ltd (1948) WCR (NSW) 4, per Jordan CJ at p 9).

Next, an injury may be caused in the course of the employment, though it is caused while the workman is doing something merely incidental to the employment. The word `duty' in this context is apt to be misleading (Weaver v. Tredegar Iron and Coal Co Limited (1940) AC 955, per Lord Atkin at p 966). The workman may still be engaged in the course of his employment, therefore, in one sense in the course of his duties, though he is doing something which in a more restricted sense he is not under a duty to do, not in the sense, that is, that he could be dismissed for refusing to do it (St Helens Colliery v. Hewitson (1924) AC 59, and see per Lord Atkinson at p 71; The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353, Humphrey Earl Ltd v. Speechley [1951] HCA 75; (1951) 84 CLR 126, per Dixon J, as he then was, at p 133). There the learned Judge said in an often-quoted passage, and one founded on by the learned arbitrator in this case:-

`When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties.'

In the present case the appellant was clearly authorised (and to my mind, expected too, in the sense that some, though not all, nurses were expected to devote some of their off duty time to looking after patients and in particular to accompanying them on outings) to go with Maureen Rowe to the theatre, and I think that this formed part of her duties in the general sense of the activities on her part associated with her employment, though it was not her duty to do it in the sense that she was bound to do it or run the risk of dismissal."

13 The Chief Justice then recited the test laid down by Dixon CJ in Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 557, namely (144):- "... had it not been for the employment the injury by accident would not or might not have been sustained, ...", or "... must not be one which occurred independently of the employment and its incidents". He went on to say (144):-

"Finally, and perhaps with more immediate relevance, an injury is not excluded from arising in the course of the workman's employment simply because it takes place in his time off duty, provided it has some connection with his work and is done in pursuance of some recognised custom or practice or with the sanction express or implied of the employer, or at least not against his prohibition. Such are the cases of the workman oiling a machine after hours in order to save time which would otherwise be occupied during working hours (Sexton v. Hosford (1916) 9 BWCC 643), the bushman repairing an axe on Sunday (McKenzie v. Nesbitt (1910) 13 NZGLR 196), the aircraft worker playing cricket during the luncheon hour (The Commonwealth v. Oliver ((1962) [1962] HCA 38; 107 CLR 353), and the male nurse at the mental hospital playing football at the hospital premises on Saturday afternoon when he was off duty (Clancy v. Department of Public Health (1961) 78 WN (NSW) 1069). ..."

14 Bray CJ emphasised two features arising from Clancy v Department of Public Health (1961) 78 WN (NSW) 1069, namely the employer encouraged the staff to participate in the football game and the playing of the games furthered the aims of the institution in treating the patients. Though forming the minority, His Honour concluded as follows (145 - 146):-

"The taking of Maureen Rowe to the theatre was incidental to the appellant's employment. It was something which she was specifically authorised to do, and something which it was calculated and expected that a certain proportion of the nurses employed at the Home would do, namely, help to interest and divert the patients and alleviate their sad lot. And it was something which she was expected and authorised to do in order to carry out her general duties of treating the patients with care and kindness and promoting their welfare, though not something for which she could have been summarily dismissed as failing in her duty if she had refused to do it."

15 There are a number of cases describing the law in circumstances of employment in remote areas. As such the emphasis in the judgments is geared towards those circumstances. The decisions should be applied with this in mind. For instance in Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 the worker was engaged in a remote region of Western Australia. He worked six days a week, ten hours a day, board and living expenses paid. He was injured on the seventh day while sight seeing at Wittenoom Gorge. After reviewing the tests described in earlier cases, the majority stated (484):-

"... 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. ... 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)."

16 In Peet v Workers Rehabilitation and Compensation Corporation [1996] SASC 5757; (1996) 66 SASR 474 the worker claimed compensation for injury which was later refused. In the course of investigating the claim, he was sent for independent medical examination. He slipped hurting his knee when attending to collect the results of the examination. The Full Court concluded the injury did not arise out of the worker's employment. Doyle CJ stated (480):-

"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' (at 483)."

17 Doyle CJ then posed the question of whether this, "isolated incident occurring out of working hours", had sufficient connection with the worker's work to be in the course of that employment. He answered that as follows (482):-

"I would answer that question in the negative. There is no connection between the incident and the worker's duties of employment. The employer's interest in the worker complying with the Corporation's requirement is balanced by the worker's own interest in obtaining compensation. The attendance at Calvary Hospital was in no sense for the purpose of the worker's work, it was in no sense ancillary or incidental to his work. It was, I concede, linked to his employment, because workers' compensation is a usual aspect of employment, and he was pursuing his rights to compensation, but to my mind that does not mean that what he did was in the course of employment. There is no link to performance of the duties of employment, although there is a link to the employment of the worker. But that link is not of a kind which makes me regard the attendance as in the course of employment. Putting it differently, I agree with the Tribunal that the link to employment is too tenuous."

18 On the basis of this analysis the worker's claim must be refused. The linkage is too tenuous. The circumstances of the worker here are more tenuous than, for example, the circumstances of the nurse in Kop's Case. And it must be remembered that Bray CJ's decision in the worker's favour was a dissenting opinion. While there were arguable or potential benefits for the respondent it is equally the case that there were benefits for the worker. I refer the observations of Doyle CJ in Peet's Case and the fact of the balancing of the worker's own interest. As the evidence shows the employer required that any intrusion on working hours caused by preparing for the review had to be made up later (17). Moreover there was no employment consequence if the worker declined involvement. Finally it had no relevance to the work he was employed to do by the respondent as Information Technology Help Desk Co-ordinator. His claim must fail.

19 For completeness I mention the plea by Mr Cole, counsel for the respondent, under s 30(4). That provision reads as follows:-

"However, a disability does not arise from employment if it arises out of, or in the course of, the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer."

20 The evidence does not satisfy me that there was a direction or request of the employer, express or implied. The activity does not form part of the worker's employment. It was a social activity. In General Motors-Holden's Automotive Ltd v Busby (1996) 68 SASR 1 at 10 Lander J, who with Perry J formed the majority, stated as follows (10 - 11, 12):-

"However, in the circumstance where a worker during an ordinary break from work, with the permission of his or her employer, but not at the direction or request of his or her employer, involves himself or herself in a social or sporting activity being a social or sporting activity that is not part of the activity of the worker's employment, and suffers a disability, then that worker is not entitled to compensation under s 30 of the Act.

... As I have already said s 30(4) supposes that the disability occurred in circumstances that would otherwise be held to be arising out of or in the course of employment. If it were otherwise s 30(4) would have no work to do. However if the disability arises out of or in the course of employment, but has occurred by reason of the worker's involvement in a social or sporting activity, s 30(4) makes that disability non-compensable."

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 Form 11 within 14 days of the delivery of this decision and must be served on all parties.