Workers' Compensation - Entitlement to compensation - Employment related injury, disability or disease - Arising in course of employment - Worker living away and on call - Injured while walking and within mobile phone range.

Workers Rehabilitation and Compensation Act 1988 (Tas), s 25(1)(a).

Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547; Henderson v Commissioner of Railways (Western Australia) [1937] HCA 67; (1937) 58 CLR 281; Humphrey Earl Limited v Speechley [1951] HCA 75; (1951) 84 CLR 126; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; Comcare v PVYW [2013] HCA 41, 250 CLR 245; St Helens Colliery Company Limited v Hewitson [1924] AC 59; Potts v Commonwealth (1971) 18 FLR 128; Wilkinson v Forestry Commission [1986] TASSC 47, discussed.

Judgment Number: [2022] TASFC 11

BUDDY DETLEF NAZAR v HYDRO ELECTRIC CORPORATION

BUDDY DETLEF NAZAR v HYDRO ELECTRIC CORPORATION

1. The appellant, Buddy Nazar, broke his leg on 25 May 2018. He claimed workers compensation in respect of that injury from his employer, the Hydro Electric Corporation ("the HEC"). Liability was disputed. There was a hearing before the Workers Rehabilitation and Compensation Tribunal. Its Chief Commissioner, Ms A Clues, made a determination that the appellant's injuries arose in the course of his employment: N v Hydro Electric Corporation [2021] TASWRCT 2. The employer appealed. The appeal was heard by Geason J, who made orders to the effect that the determination of the Tribunal be set aside and the referral to the Tribunal dismissed: Hydro Electric Corporation v Nazar [2022] TASSC 37. This is an appeal by the worker from that judgment.
2. I have read the reasons for judgment of Estcourt J, and agree with him that this appeal should be allowed, the orders of Geason J set aside, and the determination of the Tribunal restored.

1. The facts of this case were not in dispute. When the worker broke his leg, he was walking with his partner and his dog beside the lake at Tullah. He and his partner had decided to go for a stroll. The party encountered a muddy section of a walking track. The worker stepped onto a log beside the track, lost his footing, fell, and broke his leg.
2. The worker's home was in Ulverstone. He was employed by the HEC as a relief area coordinator. For his work he was based at Tullah. The HEC provided him with a residence there. There were days when he was required to work from 7am to 5pm. There were other days when he was required to be available, on call. At the time he was injured he was on call. Whilst on call he was required by his employer to answer his phone or respond to a call within 15 minutes of notification, to be in a position to respond by leaving Tullah and attending a work site within 15 minutes of phone notification, to be fit to drive, to be rested to a level to enable a reasonable response, and to remain within an area of call coverage with suitable response times. He was paid an allowance of $68.15 per pay for each day that he was on call. The requirements that applied when he was on call were set out in an enterprise agreement under which he was employed, in a provision relating to "Availability Duty".

1. Section 25(1) of the Workers Rehabilitation and Compensation Act 1988 ("the WRC Act") relevantly provides as follows:

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

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

1. The Act does not provide for any exceptions that are relevant to this case. From the outset the worker accepted that the injury did not arise out of his employment. However he contended at all material times that the injury arose in the course of his employment. On that basis he contended that he was entitled to compensation pursuant to s 25(1).
2. The distinction between an injury arising out of a worker's employment and one arising in the course of that worker's employment was addressed by Dixon CJ in Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547, in which his Honour said the following, at 556:

"Repeatedly the contrast has been made between the effect of the words 'out of' and the effect of the words 'in the course of'. Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connexion between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition. I have seen nothing to suggest that within the expression 'in the course of the employment' there had been discovered any element of causal relation with the employment and its incidents. To prescribe that element was considered to be work of the words 'arising out of'. It was thus natural for this Court to say after the word 'or' had been substituted for 'and' in the Western Australian provision that the result of English authority was 'to show that the words "arising in the course of the employment" describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is more than an adjunct to or an incident of his service'."

1. In a number of cases the High Court made it clear that an injury occurs "in the course of" a worker's employment if it occurs when the worker is doing something that is incidental to the performance of his or her actual duties. One such case was Henderson v Commissioner of Railways (Western Australia) [1937] HCA 67; (1937) 58 CLR 281. That case concerned a railway ganger who was in charge of men erecting fences near a railway station. They were living in a camp near the station. The ganger was killed by a train during his lunch hour while crossing the railway line on his way to the camp. His duties required him to work and direct the work of his men between certain hours, and also to check the tools used, to keep time sheets, to attend to correspondence, and to issue railway concession passes. The High Court held, by majority, that the accident occurred in the course of his employment. Dixon J (as he then was) said the following at 293-294:

"The reason given by the Full Court for the conclusion that the accident did not arise out of or in the course of the employment appears to me to depend upon the view that before the accident the deceased entirely left the sphere of his duty and, independently of his employment, was finding his way over part of his employer's premises to the place where for his own benefit he was allowed to camp. In my opinion such a view makes too marked a contrast between the deceased's actual work with the gang and his use of the facilities of the camp. It treats the employment as entirely restricted to working with and supervising the gang when at work and the camp as something no different from the workman's own dwelling or other place of residence.

Cases of this description are never easy. The general principle governing the ascertainment of the "course of employment" appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. (My emphasis.)

Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances on which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance . That he has not yet assumed the same relation to his employer's premises and work as an ordinary member of the public is another matter of weight ...". (Case references omitted.)

1. Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 was another High Court case concerning a claim for worker's compensation in respect of an injury during a lunch break. In that case the worker was employed to visit shops in the Sydney metropolitan area for the purpose of servicing and repairing machines and implements supplied by his employer. He and a shop proprietor travelled some distance on a motorcycle in search of a hot fish lunch, and were returning at about 4pm when he was injured. The High Court unanimously held that the accident did not occur in the course of the worker's employment. The principal judgment was delivered by Dixon J (as he then was). His Honour said the following at 133:

"The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. 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 authorized to do in order to carry out his duties."

1. In Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 the High Court considered a workers compensation claim by a worker who was injured on his day off. The worker had been working for his employer in New South Wales but was transferred to work at Mount Newman in Western Australia for three months. During that period he was required to work about ten hours per day for six days per week, with a possibility of also having to work on some Sundays. On a Sunday when he was not required to work, his supervisor organised a trip to Wittenoom Gorge in the employer's vehicles for anybody who cared to come along. The worker was injured when returning to Mount Newman when one of the vehicles crashed. The High Court unanimously held that his injury arose in the course of his employment. In the principal judgment in that case, Mason CJ, Deane, Dawson and McHugh JJ explained the basis of the worker's entitlement as follows, at 484:

"... an interval or interlude in an overall period of 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'." (Footnote omitted.)

1. The decision in that case was discussed and explained by the High Court in Comcare v PVYW [2013] HCA 41, 250 CLR 245. That case concerned a worker employed by a Commonwealth Government agency. She was required by her employer to travel to a country town and to stay there overnight. She stayed at a motel booked by the employer. At the motel during the evening she engaged in sexual intercourse with an acquaintance. During intercourse a light fitting above the bed was pulled from its mount and fell on her, causing injuries. She claimed compensation on the basis that the injury arose in the course of her employment. The High Court, by majority, rejected that contention. The majority (French CJ, Hayne, Crennan and Kiefel JJ) explained the relevant principles as follows, at [50]-[52]:

"[50] ... the Hatzimanolis principle, when it is appropriate to be applied, effects a connection between the circumstances in which the employee sustains injury and the employment. The principle may create a temporal element, in the notion of an interval, but it also creates a factual association or connection with the employee's employment. It does so by the fact of the employer's inducement or encouragement.

[51] The need for there to be a factual connection or association between the circumstances of the injury and the employment is implied by the definition of injury, as one suffered in the course of the employee's employment. ...

[52] The relevant connection or association created by the Hatzimanolis principle is between that activity and the employer's encouragement to engage in it. Likewise, when an injury is sustained by an employee at a place and by reference to that place, in the sense earlier discussed, the connection between that circumstance and the employment is provided by the fact that the employer induced or encouraged the employee to be present at that place." (Footnote omitted.)

1. However their Honours made it clear that an inducement or encouragement to be at a particular place was not, without more, sufficient to establish the requisite connection with a worker's employment. They said, at [60]:

"An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place."

1. The circumstances in which there will be a sufficient connection between a worker's employment and his or her presence at a particular place were explained by their Honours as follows, at [44]-[45]:

"[44] ... 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.

[45] 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."

1. From these authorities, it is clear that an injury will occur in the course of a worker's employment if it occurs in one of the following situations:
   • When the worker is performing his or her actual duties.
   • When the worker is doing something that he or she is reasonably required, expected or authorised to do in order to carry out his or her actual duties.
   • When, during an interval between periods of work, the worker is doing something induced or encouraged by the employer.
   • When, during an interval between periods of work, the worker is at a place where the employer induced or encouraged him or her to be present, and is injured in circumstances that are the subject of the employer's inducement or encouragement.

1. Throughout this litigation the employer has consistently contended that the worker's injury did not occur in any of the situations listed above. It has always contended that he broke his leg while walking his dog, and that he was not doing that in the course of his employment.
2. Throughout this litigation, the primary submission of counsel for the worker has been that this was not an interval case, but that the worker was injured when he was doing something required by his contract of employment, namely standing by on Availability Duty at Tullah within an area of mobile phone coverage, ready to go where he was needed within 15 minutes of being contacted. His counsel, both before the learned primary judge and before this Court, also relied on an alternative argument that, if this was an interval case, the worker was entitled to compensation either on the basis of place and/or activity.
3. The learned Chief Commissioner rejected the contention that the worker was in the course of his employment because he was performing contractual duties, but she held that the Hatzimanolis principle applied, and that the injury occurred during an interval between episodes of work when the worker was doing something that he was induced or encouraged to do by his employer. Her reasoning appears in the following paragraphs of her decision:

"66 The essential inquiry is how was the injury brought about? The worker was taking a walk along the Tullah lakeside whilst on Availability Duty where he was required to be contactable by the employer within 15 minutes and be ready to proceed to commence work within 15 minutes of being contacted. In the context of this matter, walking along the Tullah lakeside is an unexceptional activity that would have been a recognised practice for workers required to work at Tullah,and it would have been recognised as an acceptable activity by the employer. I find that it was within the scope of activity or activities which the employer induced or encouraged the worker to undertake.

68 If viewed in isolation, the activity in question had a tenuous connection with the worker's employment. However, when regard is had to the time, place and circumstance of the activity as well as the general nature, terms and circumstances of his employment, the connection becomes far less remote and the injury can be said to have occurred in the course of the worker's employment.

69 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."

1. An appeal from a decision of the Tribunal could only be brought on a point of law: WRC Act, s 63 (since repealed).[1] The learned primary judge appears to have concluded that the learned Chief Commissioner erred in law by making a finding that was not open to her on the evidence. He said the following, at [28]:

"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."

1. His Honour did not address the primary submission of counsel for the worker to the effect that he was engaged in actual work when injured. In his reasons, at [10], he said, "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." That was incorrect. His Honour made a mistake about the scope of the issues before him and, as a result, did not address the worker's primary contention. It appears from his reasons at [19] that he understood the worker's contention to be that the case was "a place case" as distinct from "an activity case". At [28], before the passage quoted above, his Honour concluded that the case was an activity case. I take him to have thereby rejected the worker's alternative argument, to the extent that it related to place rather than activity.
2. I agree with the learned primary judge's conclusion that the learned Chief Commissioner erred in law. There was no evidence before her of any inducement or encouragement by the employer for the worker to engage in any activity that he was engaged in at the time of his injury. There was no evidence for example, that off-duty employees at Tullah were encouraged to go for recreational walks or strolls for the sake of their health and wellbeing. It can hardly be said that the employer induced or encouraged the worker to do anything he chose that was consistent with his availability to respond to a call if required.
3. My conclusion as to this point would appear to be inconsistent with the judgment of O'Loughlin J in Commonwealth Bank of Australia v Wark (1995) 22 AAR 181. The worker in that case was required by her employer to be on call to attend to faulty automatic teller machines between 8.45am and 9.30pm on a Saturday. Between those hours she injured a finger in her kitchen when attempting to remove the plastic cap of a bottle with a knife. It was held that the injury occurred during an interval within a period of work, and that the employer had induced or encouraged her to spend her time during that interval in a particular way. She was required to keep her pager switched on, and inhibited from doing anything that might be inconsistent with her use of the pager.

1. Once the learned primary judge had concluded that the Tribunal decision was based on an error of law, it did not automatically follow that the decision would have to be reversed. The worker was contending that the Tribunal had correctly determined that the injury occurred in the course of employment, on the basis of reasoning not adopted by the Tribunal. The learned primary judge should have addressed the submission to the effect that the worker was injured while undertaking actual work, but he overlooked that submission. By virtue of rr 709(1) and 693(7), his Honour had the power to make any order with respect to the appeal from the Tribunal that was just "for the purpose of ensuring the determination of the merits of the real question in controversy between the parties". It was in the interests of justice that he deal with the submission that he overlooked. He erred, and denied the worker procedural fairness, by failing to address that submission.
2. There are a number of authorities which, in my view, compel a conclusion that this was not an interval case, but that the worker was injured in the course of his employment, either on the basis that he was doing actual work or on the basis that he was doing something that he was reasonably required or expected to do in order to carry out his duties.
3. The House of Lords considered the scope of the words "in the course of ... his employment" in St Helens Colliery Company Ltd v Hewitson [1924] AC 59. That case concerned a colliery worker who was injured on his way home from work on a special colliers' train when it derailed. The employer had arranged with a railway company for special trains to run for its workers. Colliery workers were not required to use the special trains, but were able to use them and pay reduced fares. Their Lordships held, by majority, that the injury did not arise in the course of the worker's employment because the worker was not required to travel on the train that was provided by his employer.
4. The case is significant however because it contains statements of principle as to the course of employment. Lord Atkinson said the following, at 70:

"If each collier was bound by his contract to travel to his employer's colliery by this provided train, then cadit questio_._ The collier would be in the course of his employment when he was doing a thing he was bound by his contract of service to do. But the conferring upon a collier of a privilege which he is free to avail himself of or not, would, primâ facie, impose no duty whatever upon him to use it."

1. A little later, his Lordship said the following, at 70-71:

"The difficulty of reconciling all the authorities on this question as to the course of a workman's employment arises, I think, from the omission on the part of some of the Courts to frame some test which must be satisfied in order to bring an accident within the course of a workman's employment, leaving the County Court Judge in each case to decide whether the evidence establishes that the test is satisfied. I myself have been rash enough to suggest a test, namely, that a workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do.' Or what is, in other and, I think, better words, in effect the same thing, namely, when he is doing something in discharge of a duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word 'employment' as here used covers and includes things belonging to or arising out of it.

For instance, haymakers in a meadow on a very hot day are, I think, doing a thing in the course of their employment if they go for a short time to get some cool water to drink to enable them to continue the work they are bound to do, and without which they could not do that work, and workmen are doing something in the course of their employment when they cease working for the moment and sit down on their employer's premises to eat food to enable them to continue their labours."

"The words 'and in the course of' are not equivalent to 'during.' The accident must occur during the employment, but more than that, it must occur 'in the course of the employment.' The employment may be by the year. The accident must, of course, be one which happens during the year, but more than that, it must be in the course of the employment during the year. The employment may be to do some defined manual work, say, hewing coal, but the accident need not arise when the man is actually using his pick. He may be going down in the cage. He may be resting between shifts. He may be taking a meal. He may be merely standing by, waiting for the next job. All these, and such as these are not 'the employment' but are incidental to the employment. The man is in the course of his employment - is engaged in his employment in all such cases. 'They also serve who only stand and wait.' In every case, the facts have to be ascertained and discrimination made between the time during which or the place at which the employment is and those during or at which it is not being carried on.

A first step is to ascertain what is the employment. If the workman is doing anything that his employer could and did expressly or by implication, employ him to do or order him to do, and the accident occurs when he is doing it, the case is within the Act."

1. Those passages had been cited with approval in a number of High Court cases over the years as authority for the proposition that one situation in which a worker is acting in the course of his employment is when he or she is doing something that is required by his or her contract of employment: Henderson v Commissioner of Railways (above) at 294; South Maitland Railways Pty Ltd v James [1943] HCA 5; (1943) 67 CLR 496 at 550, 502; Commonwealth v Wright [1956] HCA 79; (1956) 96 CLR 536 at 561; Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 at 356.
2. The worker in this case was injured while discharging duties imposed by his contract of employment. He was required to be in the Tullah area, rather than at home in Ulverstone or anywhere else. He was required to be within an area of mobile phone coverage. He had started to walk towards a lodge, intending to show it to his partner, but on the way he discovered that he had lost mobile coverage. They therefore turned and walked in the opposite direction until he was injured. He had mobile coverage at the place where he was injured. His partner used his phone to call for help. He was getting paid for doing his duty whilst on call.
3. A similar case was considered by Judge O'Shea in the County Court of Victoria in Potts v Commonwealth (1971) 18 FLR 128. The employee in that case was an RAAF officer who was bitten by a mosquito while stationed in Malaysia. He contracted encephalitis and died as a result. He was an airfield safety officer at an operational air force base. He was required to live in a house allotted to him near the base, and was expected to be on call at all times. It was not clear when he had received the fatal mosquito bite, but Judge O'Shea concluded, at 140, that he was in the course of his employment during the whole period in which he could have received that bite.
4. Counsel for the appellant relied on a Tasmanian case, Wilkinson v Forestry Commission [1986] TASSC 47. The plaintiff in that case was a forest ranger. He lived in a residence provided by his employer. He was injured while working at a saw bench in a workshop building at his place of residence. He was required, pursuant to his contact of employment, to be present at his residence that day, and to be within earshot of a telephone, in case he was required to respond to a report of a fire. He was not paid to be on standby duty, but was given additional annual leave as compensation for the inconvenience. There was a dispute as to whether s 5(3A)(a) of the Workers Compensation Act 1927 applied. Under that provision, an injury was deemed to arise out of and in the course of employment if it occurred on a working day, the worker attended at his place of employment on that day, the attendance was pursuant to his contact of employment, and the injury occurred while he was present at his place of employment. The employer accepted that the injury occurred at the worker's place of employment, but contended that it did not occur on a working day, and that the worker's attendance was not pursuant to his contract of employment. Green CJ rejected those contentions and held that the worker was obliged by his contract of employment to remain within a particular area that included the workshop, and that that obligation made the day in question a working day. Although that case concerned different legislation, it supports a finding in this case that the appellant was performing his actual duties pursuant to his contract of employment when he was injured.
5. Since the appellant, as required by his contract of employment, was in the Tullah area, available to be called out, ready to respond to a call within 15 minutes, and in a fit state to respond to a call, and since he was being paid for his time on Availability Duty, I am satisfied that his injury occurred when he was performing duties imposed by his contract of employment, and that the injury therefore occurred in the course of his employment. In my view the learned primary judge should have made a finding to that effect.

1. If, contrary to what I have just said, this case should have been categorised as an interval case, the result should be the same. The worker was induced or encouraged to be at a place, namely Tullah, where there was a hazard. There was a muddy section of a walking track, and a danger that pedestrians would leave the track and be exposed to a risk of falling. The hazard was analogous to that involving the hypothetical insecurely fastened light fitting referred to in Comcare v PVYV at [45]. Thus, whether this was an interval case or not, the injury occurred in the course of the worker's employment.
2. For these reasons I would allow the appeal, set aside the orders of the learned primary judge, and substitute an order dismissing the appeal from the determination of the Tribunal.

BUDDY DETLEF NAZAR v HYDRO ELECTRIC CORPORATION

1. This is an appeal from the decision of Geason J in Hydro Electric Corporation v Nazar [2022] TASSC 37, in which his Honour upheld an appeal against the decision of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") in Nazar v Hydro Electric Corporation [2021] TASWRCT 2.
2. Before the Tribunal the appellant conceded that an injury he suffered did not "arise out of" his employment with the respondent but argued that he suffered the injury "in the course of" that employment because it was sustained in circumstances possessing a sufficient connection to his work.
3. The circumstances giving rise to the claim for compensation are set in the reasons for decision of the Chief Commissioner of the Tribunal as follows:

"[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 (sic) 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).

[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'.

[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."

1. The Chief Commissioner held at [60]-[70] of her reasons:

"60 Even though it was the worker's choice to go on a walk with his partner and dog, the evidence is that he was inhibited by what he could do whilst on call. He could not do anything inconsistent with being on Availability Duty. Walking in the Tullah area whilst remaining within mobile phone reception and ensuring that he could attend work within 15 minutes is entirely consistent with the worker's obligations to the employer whilst on Availability Duty. That provides the necessary nexus between the activity he was performing at the time of the injury and his employment.

1. The worker was only in Tullah as an incident of his employment. He was under the control of the employer to the extent that he was inhibited in what he could and where he could go. As a result of being on Availability Duty, the worker's choices about what he could do and where he could go were restricted. There was nothing 'exceptional' in taking a walk with his partner and his dog along the Tullah lakeside.
2. The worker provided evidence in the form of a document from the employer titled 'Healthy Hydro Program' (W6). This document supports a finding that the employer recognised the need for its employees 'to be proactive in managing their own health and wellbeing'.
3. The employer's approach in applying the test in Comcare v PVYW (supra) is too restricted. The proper application of the Hatzimanolis v ANI Corporation Ltd (supra) principle is set out at [38] in Comcare v PVYW (supra).
4. The starting point is satisfied because the worker suffered his injury whilst not engaged in actual work. It did not arise out of his employment.
5. The next inquiry is what the worker was doing when he was injured. I accept the employer's submission that at the time of his injury the worker was engaged in the activity of walking his dog in company with his partner along the Tullah lakeside whilst he was climbing onto or across a log.
6. The essential inquiry is how was the injury brought about? The worker was taking a walk along the Tullah lakeside whilst on Availability Duty where he was required to be contactable by the employer within 15 minutes and be ready to proceed to commence work within 15 minutes of being contacted. In the context of this matter, walking along the Tullah lakeside is an unexceptional activity that would have been a recognised practice for workers required to work at Tullah, and it would have been recognised as an acceptable activity by the employer. I find that it was within the scope of activity or activities which the employer induced or encouraged the worker to undertake.
7. I do not accept the employer's submission that the activity of the worker walking his dog in the company of his partner along the Tullah lakeside, climbing on to an across a log was not an activity induced or encouraged by the employer. In this case, that analysis is too narrow and does not have regard to 'the general nature, terms and circumstances of the employment'. The concept of arising 'in the course of' employment is not a narrow one.
8. If viewed in isolation, the activity in question had a tenuous connection with the worker's employment. However, when regard is had to the time, place and circumstance of the activity as well as the general nature, terms and circumstances of his employment, the connection becomes far less remote and the injury can be said to have occurred in the course of the worker's employment.
9. 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. There was nothing exceptional about the worker walking along the Tullah lakeside on the day of the injury. It was not foreign to the employer's interests. Having regard to the general nature, terms and circumstances of the worker's employment, I determine that the worker's injuries arose in the course of his employment with the employer."
11. The appellant appealed against that decision. The grounds of appeal are as follows:

"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.

1. 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.

1. 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'.

1. 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.

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.

1. 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 employmen't 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."

1. The learned primary judge upheld the respondent's appeal.
2. At [10]-[15] of his reasons for decision his Honour said:

"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.

1. 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.
2. The Tribunal did not consider the case fell within the first limb of s 25 of the Act.
3. 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.
4. 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.
5. Indeed this is precisely the factual scenario for which the second limb of s 25 of the Act was enacted."
6. At [22]-[29] of his reasons for decision his Honour said:

"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.

1. 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) 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).

1. 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.
2. 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'.

1. 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.
2. 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.
3. 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.
4. 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."

1. The appellant has appealed to this Court against the decision of the learned primary judge. The grounds of appeal are as follows:

"1 His Honour erred in law in finding that the Appellant's injuries did not arise in the course of his employment at [29].

1. His Honour erred in law in failing to consider the Appellant worker's submissions that this was not an interval case and failing to recognise that the dichotomy referred to at [18] was not relevant if that submission was correct.
2. His Honour erred in law (Westrupp v BIS Industries Limited [2015] FCAFC 173 and Comcare v PVYW [2013] HCA 41) in finding that 'the emphasis is thus squarely on identifying the act that caused the injury' [22] and in finding that 'it is critical ... to identify with particularity the act causing the injury' [23]."

1. Counsel for the appellant, Mr Read SC and Ms Williams, in their written submissions, contend that Ground 1 raises the issue of whether an employee is within the course of his or her employment when injured when the employee is required by his or her employment contract to be available to receive and respond to a call out when and if one occurs; is required to otherwise comply with all on-call requirements; and is paid $68.00 per day, if he or she complies with that contract. They argue on behalf of the appellant that the answer to that question is "yes".
2. Counsel for the appellant contend that the learned primary judge at [11] of his reasons incorrectly asserts that the appellant's primary argument was 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 and thus was an injury "arising out of" his employment. Counsel say that this was never argued by the appellant.
3. Counsel for the appellant submit that it was the duty of the worker, for which duty he was paid, to be available to receive and respond to a callout, and at the time of the injury the appellant was complying with all of the requirements of his contract of employment specifically for "Availability Duty". That is, they say he was doing what he was paid to do when he was injured and that he was not actually working "on the tools" is not to the point.
4. Counsel submit that at a very early time in the development of workers compensation jurisprudence it was recognised that "they also serve who only stand and wait".
5. Counsel rely on St Helen's Colliery v Hewitson (1924) AC 59; Wilkinson v Forestry Commission (1986) TASSC 47 at [19]; Commonwealth Bank v Wark (1995) 22 AAR 181 at 185, (which they argue is factually indistinguishable from the present case); Potts v The Commonwealth (1971) 18 FLR 128 at [139]-[140] and Comcare v PVYW [2013] HCA 41, 250 CLR 246 at [35].
6. Those submissions comprise ground 1 of the notice of appeal.

1. In the alternative the appellant contends by ground 2 of the notice of appeal that if the Court does not accept that the appellant's injury arose during a period of actual work, then, he was injured during an interval in work within the meaning of the tests discussed in Hatzimanolis v ANI Corp Ltd [1992] HCA 21, 173 CLR 473; Comcare v PVYW (as above).
2. The appellant submits that at [10] of the learned trial judge's reasons, his Honour incorrectly stated that it was 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, as the appellant's primary argument was that the appellant was injured while doing an act which formed part of his service to his employer as argued in this Court under ground 1.
3. The appellant submits that in considering the alternative his Honour also erred at [14] by applying the wrong test. Counsel for the appellant submit that the Comcare test is not one of causal connection but rather a factual connection or association with the employment; that the majority in Comcare v PVYW refer to Dixon CJ in Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547 and confirm that a causal connection is not proposed as necessary to satisfy that an injury arises in the course of employment and that what the learned primary judge should have considered is the "general nature, terms and circumstances of the employment" in determining the overall question of whether the injury occurred in the course of employment: (Comcare v PVYW at [33]).
4. Counsel for the appellant submits that the learned primary judge correctly identified at [21] of his reasons that if the case is an interval case, then for an injury to be within the course of employment there needs to be inducement or encouragement of the employer as to place or activity.
5. The appellant's alternative argument was that his injury was caused by reference to the place and if that was not accepted, the injury was as a result of an activity. The appellant says that his Honour held at [28] that the case was an activity case, but failed to identify why it is not a place case.
6. Counsel for the appellant submit that in Comcare at [29] the majority held that:

"an interval will ordinarily at be accepted as being part of the course of employment if the employer has induced or encouraged an employee to spend the interval 'at a particular place or in a particular way'."

1. Counsel do not contend that because an employer has encouraged a worker to be at a place in itself means that a worker is entitled to compensation because an injury occurs at that place. There must be more. Here they argue that the facts display much more. That is, that the appellant was on "Availability Duty" at the time of his injury and was complying with the terms of his contract of employment in respect of that duty insofar as place is concerned - "to be contactable by Hydro Tasmania within 15 minutes, and be ready to proceed to commence work within 15 minutes of being contacted".
2. Further, it is submitted, the appellant was in the particular area where he was injured as a result of being outside of mobile phone reception and turning around "due to the fact he was on-call and had to be contactable".
3. The appellant relies on the statement in Wilkinson v Forestry Commission (above) at [18], namely:

"Whether a worker's attendance at a place can be regarded as being pursuant to his contract of employment will depend upon what the worker was obliged to do under that contract and whether his presence in that place was incidental to his performance of his contractual obligations"

and submits that but for the requirements of his contract the worker would not have been in the place he was when he was injured.

1. Next, the appellant submits that the activity he was engaged in at the time of the injury is to be considered in the context of the nature, terms or circumstances of his employment. He says that the relevant activity was either:
   1. the activity of holding himself in a state of readiness to respond to a call out when and if one occurs and to otherwise comply with the on-call requirements;
   2. and/or engaging in all activities which were incidental thereto, so long as the activities do not so far deviate on a purpose of his own, that they are no longer to be regarded as in the course of employment.
2. The appellant argues that recreational walking within the immediate surrounds of accommodation provided by the employer was not such a deviation, especially so when he was deliberately confining the areas in which he walked to those within which he could receive mobile phone calls for the purpose of his on-call employment.
3. Counsel for the appellant note that the learned primary judge at [28] of his reasons stated that the appellant's argument that there was nothing exceptional or foreign in the appellant walking along the Tullah lakeside was not material but submit that the statement is incorrect as the Court must consider whether during an interval period an employee does something that "is reasonably related to the exigency occasioned by his duties" or whether the employee "so far deviates on a purpose of his own" (Comcare at [57]).

1. Ground 3 of the notice of appeal raises the question of whether if this is an interval case, the Court is required to consider the facts, as was said by the learned primary judge at [22] with an emphasis "squarely upon identifying the act which caused the injury".
2. The appellant argues that the authorities demonstrate that this is the incorrect approach and that the words quoted above from Comcare at [33] confirm that attention is not to be focused on the occasion giving rise to the injury. That is to say, that "it will always be necessary to have regard to the 'general nature, terms and circumstances of the employment' in determining the overall question, whether the injury occurred in the course of employment. Attention is not to be focused just upon the occasion giving rise to the injury".
3. Counsel for the appellant note that the learned primary judge referred at [23] to par [67] of Westrupp v BIS Industries Limited (above) but failed to appreciate what exactly it was Buchannan, McKerracher and Katzmann JJ were saying. That was:

"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])."

1. Counsel for the appellant submit that the learned primary judge made the same error.

1. Counsel for the respondent, Mr Jackson SC, submits that ground 1 of the notice of appeal as expanded upon by counsel for the appellant's written submissions, merely asserts that the appellant was in the course of his employment when he was injured, solely because at the moment he was injured he was on "Availability Duty" and paid an "availability allowance" of $68.15 per day in addition to his normal wage, and he was not, when the injury occurred, within an interval or interlude within an overall period or episode of work so as to invoke the Hatzimanolis principle.
2. Counsel submits that it is not contentious that on the day when the appellant's injury occurred, he was on Availability Duty but was not called out to do any actual work, that is to say to, "work on the tools". Counsel submits that the obiter statement quoted by counsel for the appellant from Hewitson (above), namely, "they also serve who stand and wait" is misconceived here because the quote is lifted out of the important context in which it appears, and ignores the facts of Hewitson.
3. And counsel submits that the other cases relied upon in the appellant's submissions (as set out above) are distinguishable from this one on their facts and by reference to the issue that had to be decided in each case. Moreover counsel submits that it is apparent that with just one exception, those cases all pre-date both Hatzimanolis and Comcare. The exception is Commonwealth Bank v Wark (above) which pre-dates Comcare and purports to apply Hatzimanolis, but in doing so "provides a good example of failure to follow the correct process of reasoning to be employed in applying the Hatzimanolis principle, explained by the majority in Comcare at [34]-[38])".
4. Counsel for the respondent sets out his analysis of the Hatzimanolis principle in his written submissions as follows:

1. The Hatzimanolis principle is in fact a reformulation of earlier tests examined in detail by the majority in Comcare at [17]-[28].[2] The statement of principle in Hatzimanolis begins (at 484) with a statement not about injury but about 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 [and the employee does so].

The parenthesised words are those the majority in Comcare added (at [31]) because they implicitly shorthand what followed in Hatzimanolis, which completes the test for whether an injury that occurs within such an interval or interlude is within the course of employment:

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 ...

1. The introductory words to the first part of that statement of principle, and the passages that precede them at pp. 483-484 clearly show that it is concerned only with intervals between periods of actual work that occur within an overall period or episode of work.[3] "

1. Counsel for the respondent submits that the facts of this case place it within that description and that it is clear from the analysis in the joint reasons at pp 482-483 in Hatzimanolis, preceding the concluding statement of principle at p.484, that an essential characteristic of such an interval or interlude is that the worker is not engaged in "actual work".
2. It is submitted that the evidence in this case places him, when he was injured, within an interval or interlude within an overall period or episode of work and not engaged in actual work, so that the Hatzimanolis principle is to be applied to the facts to determine, in accordance with the proper application of that principle in the way that is explained by the majority in Comcare (above at [34]-[38]), whether his injury was in the course of his employment.
3. Counsel for the respondent submits, paraphrasing the joint reasons in Hatzimanolis at 483, "in order to pursue his employment contract the appellant in this case was (at least for practical purposes) required to live in accommodation provided by the respondent at a location remote from his ordinary place of residence for a period determined by his shifts, so the time spent at that location that included the day of his injury should be taken to have constituted one whole period or episode of work, rather than a series of discrete periods or episodes".
4. It is submitted that Comcare involves no reformulation of the Hatzimanolis principle (Comcare, [7]-[11]). Rather, it establishes that once it is determined as a matter of fact that a worker suffered injury in an interval within an overall period or episode of work, "but not whilst engaged in actual work", Hatzimanolis is then to be applied by undertaking a series of factual inquiries that are to be made in the correct order (Comcare at [38]).
5. Counsel for the respondent submits that the concession by counsel for the appellant in their written submissions that at the time of the injury the appellant was "not actually working 'on the tools'", places this case squarely within the phrase used by the majority in Comcare at the commencement of [38] to define the circumstances in which Hatzimanolis is to be applied according to the correct order of inquiry set out in the balance of [38]. That is to say that this is a case that turns upon a "factual finding that [the appellant] suffered injury, but not whilst engaged in actual work" (Comcare at [38]).
6. Thus it is submitted by counsel for the respondent that ground 1 of the notice of appeal must fail for the same reason that the initial appeal failed. That is, that on the facts of this case, only the following findings are open:

(a) The injury occurred in an interval or interlude within an overall period or episode of work, during which the appellant was not required to perform any "actual work" unless called up to do so.

(b) The appellant suffered injury, but not whilst engaged in "actual work".

(c) When injured, he was engaged in a purely personal recreational activity.

(e) The employer did not induce or encourage the appellant to engage in that activity.

1. As to ground 2 of the notice of appeal, counsel for the respondent notes, that as it is framed, the ground asserts error in failing to consider the argument that this was not a case that attracted the application of Hatzimanolis to determine whether the injury occurred in the course of employment and that while the appellant's submissions in respect of ground 2 appear to depart from that ground so expressed, the central submission is nonetheless that the learned primary judge failed to consider the argument that this was not an interval case.
2. Counsel for the respondent says that what his Honour said at [10] in his reasons overlooks the fact that the appellant did in fact argue the position now taken in submissions in respect of ground 1 of this appeal and expanded upon in the submissions in respect of ground 2. That is, that there was no relevant interval or interlude such as to invoke the Hatzimanolis principle.
3. Further, counsel for the respondent notes, that whilst at par [11] of his reasons, his Honour essentially, correctly, states the thrust of the appellant's argument that there was no relevant interval, albeit that his Honour appears to have dissevered the single proposition underpinning that argument, (that because the appellant was complying when injured with the requirements of Availability Duty in the Enterprise Agreement the injury occurred in the course of his employment), "it must be conceded that he never returned to consider that argument".
4. Counsel notes that his Honour addresses, at [12]-[14], the question whether the appellant's injury "arose out of" his employment, but says that was a question that was never in contention, as the Tribunal correctly noted in its reasons at [21].
5. Counsel further notes that when his Honour returned to consider the course of employment question at [16] he then departs from the point of the appellant's argument and leapfrogs any consideration of the first part of the Hatzimanolis principle, so that he fails to make any factual finding as to whether the appellant suffered injury whilst not engaged in actual work (ie, whether there was an injury that happened within an interval or interlude within an overall period or episode of work), and proceeds immediately at [17]-[28] to the factual inquiries that must be made in the correct order stipulated by Comcare at [38].
6. The respondent therefore accepts that this ground 2 as it is framed in the notice of appeal correctly identifies error in his Honour's approach, but says that however, is of no consequence to the outcome, because for the reasons the respondent advanced in these submissions in respect of ground 1, this is an interval case of the kind that attracts the application of the Hatzimanolis principle in accordance with Comcare. That is to say, that even although his Honour erred in the way that ground 2 asserts, that should not affect the disposition of the appeal as the conclusion at [29] in his Honour's reasons is correct.
7. As to the substance of the appellant's argument under this ground, the respondent says that the appellant's submissions at [14]-[20] ignore two critical aspects of the process of reasoning involved in applying Hatzimanolis to the facts of a case in accordance with Comcare. They are first, that although in an interval case the employer's liability depends upon what the employer induced or encouraged the employee to do (Comcare at [34]), the process of reasoning involved in applying Hatzimanolis to the facts of a case must not commence with the fact of the employer's inducement or encouragement (Comcare at [37]). And second, the injunction in par [39] of the majority reasons in Comcare 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."
8. Counsel for the respondent argues that it is "simplistically wrong in principle" to assert that this is a place case because the terms of the appellant's employment required him to be "in the place he was when he was injured", especially without identifying with any particularity "the place". He argues that in the correct context, the place where the appellant was when he was injured was on a log on the foreshore of the lake, or at the very broadest, on the lake foreshore and nothing in the terms of his employment required that. It is said that the appellant's submissions do not identify any basis for a finding that there was any inducement or encouragement by the employer for the appellant to be anywhere near the place where he was injured, as opposed to the general location of Tullah, and generally subject to the requirements of Availability Duty.
9. Counsel for the respondent argues that in the case of both "place" and "activity", it is association with the circumstances in which the injury occurred that is relevant, as was said in Comcare at [36]:

"it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstances in which it occurred and the employment itself. It achieves that connection by the fact of the employer's inducement or encouragement. Thus, where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so." (Comcare at [36]).

1. Hence, it is argued, the factual enquiry as to "what the employee was doing when injured", followed immediately by the "essential enquiry" as to how the injury was brought about (Comcare at [38]) both necessarily involve examination of the circumstances in which the injury occurred and the making of specific findings of fact with particularity.
2. And it is argued that whilst the majority in Comcare made clear that none of this involves causation in the way that an enquiry as to whether an injury arose "out of" employment does (Comcare at [53]), it is necessary to determine whether injury is a consequence of the employee engaging in a particular activity or merely a consequence of him being at a particular place, and that is determined by reference to the circumstances in which injury occurred. Once it is established that what the employee was doing when injured was engaging in an activity, all of the factual enquiries that follow have to focus on that activity, and the place where the injury happened is not relevant (Comcare at [39]).
3. This, it is submitted, is emphasised a number of times in Comcare. At [34] where the majority states that in an interval case the employer's liability depends upon what the employer induced or encouraged the employee to do, and that Hatzimanolis did not seek to extend the employer's liability beyond that. At [32], where the majority referred to the statement in Hatzimanolis that the "factual conditions" necessary to bring an interval injury within the course of employment are that the injury occurred at a place the employer encouraged or induced the employee to be while the employee was engaged in an activity the employer encouraged or induced. And at [35] where their Honours said that it is to be inferred from that statement of factual conditions that "the employee must be doing the very thing that the employer encouraged the employee to do", when the injury occurs.
4. Counsel for the respondent also argues that the appellant's submissions ignore the need to associate the circumstances of the injury to a particular activity where a particular activity is identifiable as "what the employee was doing when injured" and which brings about the injury (Comcare at [38]) and that the legal reasoning involved in applying Hatzimanolis does not treat what the joint judgment referred to as "incidence of service" as a determinative principle:

"Incidence of service, however, is not a principle the application of which will determine whether the injury was sustained in the course of employment; it is a conclusion. When a tribunal concludes that a worker sustained injury while doing something incidental to his or her employment, it records a result which must have been reached, consciously or unconsciously, by reference to some principle or standard which leads to that result." (Hatzimanolis at 478)

1. Counsel for the respondent says that Comcare confirmed that to say something is incidental is to state a conclusion, not a test and that whilst relevant, such matters as "... the sufficiency of the connection between the employment and the thing done by the employee" at the time he or she was injured, which was a matter of degree, in which time, place, practice and circumstance together with the conditions of employment", are not themselves determinative of the question whether an injury is suffered in the course of employment" (Comcare at [19]).
2. The respondent argues that the evidence shows that the appellant nominated the place at which he was when injured, not as Tullah, but as the foreshore of the lake, but that this becomes unquestionably an activity case when the only sensible answer to the factual enquiry "what was the appellant doing when injured" is that while walking with his dog in company with his partner along the lakeside and onto or across a log, he lost his footing and fell. Further, it is argued that "it was that particular activity, and the act of falling, that brought about the injury and this was not an injury that occurred at and by reference to the place where it happened, this was an injury that occurred while the appellant was engaged in a particular activity at that place".
3. And counsel for the respondent submits, "the answer to the final factual enquiry as to whether the respondent induced or encouraged the appellant to engage in that particular activity is that plainly it did not."

1. As to ground 3 of the notice of appeal counsel for the respondent submits that the majority in Comcare make clear statements (at [36] and [50]) to the same effect as the impugned observations by his Honour at pars [22]-[23] in his reasons and that in addition, both of his Honour's statements accurately reflect what the majority said in Comcare, albeit employing different language, at [38] about the "essential enquiry" being "how was the injury brought about?" And, counsel submits, there are other statements in Comcare that touch upon the importance of identifying with particularity the act that caused the injury, namely [35], [36], [38], [46], [47], [50], [52] and [60].
2. Counsel for the respondent submits that the decision in Westrupp v BIS Industries Limited (above) is distinguishable on its facts and is further distinguishable insofar as the Court determined it to be a place case, not an activity case. He submits that a full appreciation of what the Court said at in Westrupp at [67] is only acquired by beginning at par [63]. The relevant connection between place and employment was found to exist from the following central facts:
   • The injury occurred outside a tavern in a camp site, near where the worker resided for work.
   • Apart from the campsite itself, where the worker resided, the tavern was one facility among a number of others provided by the employer - eg, a gym, a swimming pool, basketball, squash and tennis courts, and a BBQ area attached to single persons' quarters.
   • All those facilities were provided by the employer for its employees as incidents of their employment under an arrangement with another company (BHP Billiton) which had put them in place.
   • They were all part of the one complex of facilities where he resided and recreated.
3. Counsel for the respondent submits that it is those aspects of "the general nature, terms and circumstances of the employment" to which the Court held at [67] that regard should be had and that there is nothing of that kind in this case.

1. In Hatzimanolis Mason CJ, Deane, Dawson and McHugh JJ said, at 482:

''... the rational development of this area of the 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 ...".

1. Their Honours then said during the course of that reformulation, at 483:

'' ... 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.''

1. In my view, in light of the particular factual scenario, the present case ought to be so regarded and is not an interval case.
2. It is accepted by the respondent that the evidence establishes that the injury occurred during an overall period of work that required the appellant to be away from his normal place of residence in Ulverstone and residing in employer-provided accommodation at Tullah. In the week in which the injury occurred, the appellant's work involved a shift during which:

(i) On Monday, Tuesday and Wednesday, he was required to perform "actual work", that is, "on the tools", between the ordinary hours of work, which were 7:00 am to 5:00 pm;

(ii) On Thursday (the day before his injury), he was required to perform "actual work" between the ordinary hours of work, but also, from 7:00 am on that day, to be on Availability Duty; and

(iii) On the day of the injury, and for the five days immediately following it (until Wednesday 30 May), he was not required to engage in any "actual work" but was required to be on Availability Duty.

1. Under the Enterprise Agreement under which the appellant was employed:

"Availability Duty means duty whereby an Employee is available for recall to perform work after normal working hours. An Employee on Availability Duty must be contactable by Hydro Tasmania within 15 minutes and be ready to proceed to commence work within 15 minutes of being contacted. These times may be varied to meet local requirements".

1. Given that the respondent was required by the circumstances of his employment to reside in employer-provided accommodation and given that, not only on the day of his injury, but for the following five days he was not to perform any work "on the tools", so that his only paid employment in that time was the allowance for Availability Duty, to be paid at the rate of $68.15 per day, I find it impossible to say, sensibly, that he was doing anything else when he was injured than performing Availability Duty. At the time of the injury he was complying with the requirements of his contract of employment, that is to say, he was doing what he was paid to do when he was injured. That was the total extent of his employment for that day and was to be for the ensuing five days. He was to have been on-call only for six days. That was his employment and he was injured in the course of that employment.
2. Moreover, even if his Availability Duty on the day of his injury was not to be his sole employment but was to be performed between periods of "actual work" it would still fall "more readily" into the traditional 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".
3. In reaching my view I agree with the submission of counsel for the respondent that the obiter statement quoted by counsel for the appellant from Hewitson (above), namely, "they also serve who stand and wait" is taken out of context and I do not accept that the facts in Commonwealth Bank v Wark (above) are indistinguishable for the present case.
4. Ground 1 of the notice of appeal should be upheld.

1. If I am in error in my conclusion as to ground 1 and properly regarded the case as an interval case requiring the approach to be that formulated in Hatzimanolis as explained in Comcare, I would hold that the case is an activity case because the appellant's injury can be more closely associated factually with an activity, namely traversing a log, than it can be with a place as broadly described as the town of Tullah, or even the town of Tullah to the extent that it provided mobile telephone coverage and allowed the respondent to report for duty within 15 minutes of being called out.
2. In such a case, I am in complete agreement with the analysis made by the Chief Commissioner in her reasons for decision at [68]-[70]. To find that the activity of the respondent walking his dog in the company of his partner along the Tullah lakeside and climbing onto and across a log was not an activity impliedly induced or encouraged by the appellant in employing the appellant to reside at Tullah in order to work the ten day shift he was rostered for, is to take too narrow a view of the nature and content of the respondent's duties during that shift from 21 May 2018 until 30 May 2018, and does not have regard to "the general nature, terms and circumstances" of that employment. I also agree that there was nothing exceptional about the worker walking along the Tullah lakeside on the day of the injury which might take him outside the course of his employment.
3. That it is an error to take too narrow an approach to the nature and terms and circumstances of an employee's employment in an interval case is clear from Westrupp v BIS Industries Limited (above) at [67].
4. I readily accept that Comcare at [19] stands for the proposition that while the sufficiency of the connection between the employment and the thing done by the employee at the time he or she was injured is a matter of degree, in which time, place, practice and circumstance together with the conditions of employment are relevant, they are not necessarily themselves determinative of the question of whether an injury is suffered in the course of employment. However, in the present case, I am of the view that the extent of the degree should result in such a finding. The appellant's required residence at Tullah during his ten day shift, the content of his employment on the day of the injury, and rostered for the five days following, and the unexceptional nature of the activity he was undertaking when he was injured, to my mind compel a finding that the injury was suffered in the course of his employment, even if it be during an interval in that employment.

1. Again, if I am in error as to my conclusion on ground 1 of the notice of appeal, I would agree with the appellant's submission that the learned primary judge whilst setting out at [23] of his reasons the passage at [67] of Westrupp v BIS Industries Limited (above), nonetheless erred in a way similar to that identified by Buchannan, McKerracher and Katzmann JJ in that very passage, namely he gave too much prominence "to the circumstances of the particular occasion" and "focused just upon the occasion giving rise to the injury".
2. The Chief Commissioner did not err in that same way and her conclusion is to be preferred in my respectful opinion.

BUDDY DETLEF NAZAR v HYDRO ELECTRIC CORPORATION

1. I have had the benefit of reading the reasons for judgment of Blow CJ and Estcourt J. I agree with the conclusion they each reach, that this is not an interval case, but that the worker was injured in the course of his employment. In particular, I agree with the analysis that he was present at Tullah because of his employment contract. He was being paid pursuant to that employment contract. At the time he was injured he was complying with a specific requirement of that employment contract, namely to be within mobile phone service range. He was, at the time of injury, performing a service to his employer, being the performance of Availability Duty. He was doing something he was required to do in order to carry out his contractual obligations.
2. As to the divergence of view as to how this case ought to be classified if that is an erroneous conclusion, and this is an interval case, I am of the view it is a place case. The appellant's presence at Tullah within the limited sphere of mobile service range was not just incidental to the performance of his contractual obligations, it was integral to his performance of those obligations. He had to remain within a restricted area, and not just the broader Tullah area, as evidenced by the fact he was required to turn around during his walk in order to ensure he maintained mobile coverage. To that end, if this is an interval case, he was induced or encouraged to be at a particular place, namely within an area of Tullah that was capable of providing mobile phone coverage, and that allowed him to be ready to commence work within 15 minutes of being contacted. There were clear restraints on where he could be. His need to comply with his contractual obligations induced his presence there. He was in that area when the injury occurred. On either classification, the injury occurred in the course of the appellant's employment.
3. For these reasons, and the reasons expressed by Blow CJ and Estcourt J, I agree the appeal should be allowed. I agree with the orders proposed by Blow CJ.

[1] Section 63 was repealed when the Workers Rehabilitation and Compensation Tribunal was abolished and replaced by the Tasmanian Civil and Administrative Tribunal: Tasmanian Civil and Administrative Tribunal (Consequential Amendments) Act 2021, s 387.

1. [3] Hatzimanolis at 483-484; O'Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [14], [23]-[32], [41] (Bromberg J)