Solicitors for the Appellants: Griffits and Jackson

COX J This is an appeal under the Workers Compensation Act 1988, s63 against the learned Commissioner's order that the respondent worker be paid compensation by way of weekly payments and associated medical expenses. She had sustained injury when her leg was broken while playing softball at Dominic College, Glenorchy at about 5.00pm on Friday 23 April 1993. She was a member of a team consisting of staff employed by The Friends' School in North Hobart. The appeal is by her employer and its insurer against the learned Commissioner's finding that the injury arose in the course of her employment.

2. It was common ground that she was employed by the school to teach Year 7 Art and Home Economics, Year 8 Ceramics and Home Economics and that one hour per week was spent with the Matriculation Media Studies class. Her normal teaching hours were 8.00am to 3.40pm each week day. On the day of her injury, after finishing classes, she met with another teacher who gave her a lift to Dominic College where the game was to be played against a team of staff employed by that College. It was the second event they had had with staff with Dominic College. Two weeks earlier a team of staff members from Friends' had played volleyball against a similar team from Dominic at The Friends' School and the softball game was described as a reciprocal visit to them.

3. The evidence was that this was not the only such event involving contact by The Friends' School staff with staff members of other private schools. On another occasion a wine tasting had been held with staff from Collegiate School and the worker said staff of Friends' had invited staff from other schools to drinks which they held on a Friday afternoon "always from 4 till 5 o'clock", either at the primary school area or the high school area. A letter from the co-principals of The Friends' School confirmed the school's support "for the type of inter-school activity which was taking place when Miriam Berkery was injured" and said that the school encouraged staff to engage in healthy physical activities and social interaction with staff from other schools. In a document tendered by consent, Mr Darryl Smith, an executive member of the Staff Association of The Friends' School recorded in part:

"Teachers at The Friends' School have a tradition of meeting after

school, particularly on Fridays. Whilst the setting is informal, 'shop'

talk is the norm. These sessions provide not only for greater social

cohesion amongst staff, but also provide a forum for discussions of a

professional nature and time for staff from the different sites of the

school to come together. This involvement is endorsed and supported by

the Co-Principals and Heads of High School.

Consistent with this involvement, as an executive member of the Staff

Association, I decided to encourage staff participation in a range of

sporting activities. We encourage our students to be involved in sport

for a wide range of reasons, and these can apply equally well to staff.

In fact, following his recent heart operation, co-principal Lyndsay

Farrall actively encouraged staff to give a high priority to their

health and fitness. Some staff jog at lunchtime. What an excellent

role model to our students]

Early in term 1 we played volleyball. This sport was a deliberate

choice as it enabled our exchange teacher from Germany (a volleyball

coach) an opportunity to mix with a range of staff in a situation with

which he was comfortable. Approximately 15 staff took part over several

weeks, and we played a social match against some staff from Dominic

College. Contact with other schools is obviously valuable, and there is

a tradition of such interaction. As the only other co-educational

independent high school in this region, this contact with Dominic

College is particularly valuable."

4. The learned Commissioner made the following factual findings:

1 the activity in which the worker was injured was an activity which was

approved by the employer; and

2 was for the purpose of fostering better staff relationships between

the schools who were participating;

3 that type of activity would from time to time take place on the

employer's premises and from time to time at the premises of the school

that was reciprocating in the agreement;

4 the fostering of staff relations by the playing of games outside

teaching hours benefited both the staff and the employer;

5 the employer is benefited directly through health and wellbeing of the

worker; and

6 benefited indirectly through the exchange of professional information

during the course of such social activity.

5. Counsel for the appellants did not question the first two findings. He submitted that there was inadequate evidence to support the third finding but I am satisfied that there was evidence from which such an inference could be drawn. As to the remaining three findings, he accepted that they were open, but submitted that the benefits were of a very abstract nature and could be said to arise from virtually any activity which made an employee more cheerful or better informed. The learned Commissioner held that the worker was in the course of her employment when she was injured.

6. The grounds of appeal are that the learned Commissioner:

1 misdirected himself as to the correct principles to be applied to

determine whether an injury occurring between periods of actual work was

within the course of the worker's employment;

2 failed properly to apply the correct principles or alternatively

applied wrong principles in reaching his determination; and

3 ignored the principles enunciated by the High Court of Australia in

Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 106 ALR 611 (now reported at

[1992] HCA 21; (1992) 173 CLR 473) in reaching his said determination.

7. In his reasons for judgment, the learned Commissioner referred briefly to Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 where the High Court, by a majority, held that a lunch time injury to the worker's eye which was struck by a cricket ball was not one which arose out of or in the course of his employment. It appears he had merely been strolling on the recreation ground where other workers were playing cricket. The learned Commissioner remarked that this situation was now covered by legislation (see s25(5)). He then referred to Davidson v Mould [1944] HCA 10; (1944) 69 CLR 96 where a worker had been injured at his place of work during the lunch break while trying to open a soft drink bottle. He said the case was authority for the proposition that there may be times when a worker is at work that he, even though during the meal break, may be acting within the course of his employment, although again the situation is the subject of legislative provision in Tasmania. Then he adverted to Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 where the worker's injury while playing cricket at his place of work during the lunch break was accepted as arising in the course of his employment, notwithstanding the presence of a sign on the premises prohibiting playing such games. The learned Commissioner commented that the court had assumed that the employer was aware of the activities of its workers during the lunch break. He then referred to Humphrey Earl Limited v Speechley [1951] HCA 75; (1951) 84 CLR 126 where the worker had left the place at which he was required to work to procure lunch of a particular kind and travelled some distance in order to procure it rather than obtain more mundane food available close by. He cited the following passage from the judgment of Dixon CJ at 134:

"The question is whether the course adopted by the employee was

reasonably incidental to the performance on that occasion of his duties.

This cannot be stretched to make everything he chooses to do during the

interval he takes for lunch incidental to his employment. If he so far

deviates from what is reasonably incident to the execution of his duties

as to proceed on a purpose of his own not fairly resulting from the

nature or incidents of the employment, that purpose cannot be considered

in the course of the employment. There is a great difference between,

on the one hand, the worker's taking advantage of an allowable interval

for lunch in order to make it the occasion of an excursion for his own

purposes and on the other hand his acting in a way which is reasonably

calculated to fulfil the purposes of his employment and at the same time

provide for his own reasonable wants."

8. The learned Commissioner observed that generally speaking sporting activities are not regarded as being within the course of employment. He said:

"The proper way to approach this problem is perhaps to note what was

said by Adam J in Park v Peach [1967] VicRp 60; (1967) VR 558 at 565, as follows:

'In every case it is a question of fact whether the activity in which

the worker is engaged at the relevant time was sufficiently connected

with his employment as to warrant the conclusion that he was in the

course of his employment. The remoteness or otherwise of the activity

from his employment becomes a matter of degree. As Dixon, J, said in

Whittingham's Case: "the sufficiency of the connexion between his

employment and the thing done by the employee cannot but remain a matter

of degree, in which time, place and circumstance, as well as practice

must be considered together with the conditions of the employment"; and

see per Menzies, J, Oliver's Case at (107 CLR), p 364. As appears from

what Starke, J, said in South Maitland Railway Pty Ltd v James (1943),

[1943] HCA 5; 67 CLR 496, at p 504; (1943) ALR 731, it is a question whether the

activity in question was "so far removed from the employment

contemplated by the employer and worker as to exclude it from the course

of his employment" and it is material that "it was a natural thing for

any worker to do, and not altogether foreign to the employer's

interests".'"

There followed his fact findings and his conclusion that in this case the injury arose in the course of the respondent's employment.

9. Counsel for the appellants submits that the learned Commissioner misdirected himself and applied tests advanced by Dixon CJ in Humphrey Earl Limited v Speechley (supra) and in the earlier case of Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 which tests he submitted had been modified by the High Court in Hatzimanolis v ANI Corporation Limited (supra). He also submitted that the learned Commissioner paid undue heed to the passage he cited from Park v Peach (supra). As Mason CJ, Deane, Dawson and McHugh JJ point out in their joint judgment in Hatzimanolis v ANI Corporation Limited (supra) (at 479), in Henderson v Commissioner of Railways (WA) (supra) Dixon J suggested that in cases which were not concerned with injuries sustained during actual work the test of whether an injury had been sustained in the course of employment ultimately depended upon whether the worker was doing something which he was "reasonably required, expected or authorised to do in order to carry out his actual duties" (my emphasis) and that he applied the same principle in Humphrey Earl Limited v Speechley (supra) although in that case he omitted the adjective "actual".

10. In Hatzimanolis (supra), at 482, their Honours approved another passage from the judgment of Adam J in Park v Peach (supra) where he had said, at 564 of that report that the test applied in Speechley should not be treated as "laying down any fixed standard applicable in all cases" and that in "no appropriate" sense was the worker in Commonwealth v Oliver (supra) doing something "in order to carry out his duties". Their Honours went on to say:

"Beneficial as the Henderson-Speechley test has proved to be in the

law of the workers' compensation, its formulation no longer accurately

covers all cases of injury which occur between intervals of work and

which are held to be within the course of employment. A finding that a

worker was doing something 'in order to carry out his duties' at the

time he sustained injury is in many cases simply fictitious.

Consequently, the rational development of this area of law requires a

reformulation of the principles which determine whether an injury

occurring between periods of actual work is within the course of the

employment so that their application will accord with the current

conception of the course of employment as demonstrated by the recent

cases, particularly the decisions of this Court in Oliver and Danvers

[1969] HCA 64; (1969) 122 CLR 529."

11. Oliver, as noted above, concerned a "lunch time" injury sustained at the worker's place of work. Danvers was a railway worker supplied with a rolling stock van in which to reside during the week, it being impracticable for him to reside as his home, save at week-ends. He was killed well after normal working hours while asleep in the van which was destroyed by fire.

"A striking feature of the recent cases which have held that an

injury occurring in an interval between periods of actual work was

within the course of employment is that in almost all of them the

employer has authorized, encouraged or permitted the employee to spend

his time during that interval at a particular place or in a particular

way. However, it would be an unacceptable extension of the course of

employment to hold that an employee was within the course of employment

whenever the employer had authorized, encouraged or permitted the

employee to spend the time during an interval between periods of actual

work at a particular place or in a particular way. That formulation

would cover not only the case of the 'lunchtime' injury, as in Oliver,

and the case of the railway worker, as in Danvers, but also many cases

involving injuries occurring during intervals between daily periods of

work which could not fairly be regarded as within the course of

employment. Thus, an employee who is encouraged by his or her employer

to see a doctor after working hours is not ordinarily within the course

of employment if required while visiting the doctor, although the case

would come within such a formulation. The course of employment is

ordinarily perceived as commencing when the employee starts work in

accordance with his or her ordinary or overtime hours of work and as

ending when the employee completes his or her ordinary or overtime hours

of work."

13. Hatzimanolis (supra) was a worker recruited in New South Wales to work in a gang at Mt Newman in Western Australia for a period of three months. He was expected to work a six day week of ten hours per day and to work occasionally on a Sunday in addition. He was told by the supervisor that the employer would make transport available to the group on the few days they were not working and that they could undertake sight seeing excursions. In the course of the third week at Mt Newman the supervisor said that he was organising a trip to Wittenoom Gorge the following Sunday and that as the group would not be working they might like to come along. The worker did so and on the return journey the vehicle in which he was travelling overturned and he was injured. The Court of Appeal of New South Wales held that injury had not arisen in the course of employment as the sight seeing trip was not part of the worker's service to his employer nor was it doing something incidental to the performance of his duties of employment as the trip had no relationship to the performance of those duties ((1991) 23 NSWLR 125).

14. Although the High Court contemplated that the question whether injury had arisen in the course of employment might fall for determination in three situations, namely in the "lunchbreak" kind of situation encountered in Oliver, in the after work visit to the doctor with the encouragement of the employer as hypothesised by their Honours at 483, and in the down time spent during a long period of employment in a remote area as in Danvers or Hatzimanolis itself, their Honours concentrated their attention on the first and third situations which they likened to each other in the sense that both involved an interlude or interval within an overall work period as opposed to an interval between two discrete periods of work as exemplified in the second situation. Referring to a Danvers situation they said, at 483:

"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."

However they did not hold that in the latter case an injury could not arise in the course of the employment of a worker such as the present respondent. They were concerned to emphasise that in relation to an injury occurring in an interval within an overall work period (as in Danvers) it is not so much the attitude of the employer to the way in which the interval was spent that is important as the characterisation of the period or periods of work. They noted, at 480, that in Oliver Dixon CJ had said (at 358):

"the circumstances of the employment make it clear that the

employees were not expected to leave the premises for lunch, that the

custom of playing for a time during the thirty minutes allowed for lunch

was a recognized practice and the proper inference is that the course of

the employment extended over that half-hour."

At 484, relying on the proposition that "Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way" they concluded that:

"... it should now be accepted that an interval or interlude within

an overall period or episode of work occurs within the course of

employment if, expressly or impliedly, the employer has induced or

encouraged the employee to spend that interval or interlude at a

particular place or in a particular way. Furthermore, an injury

sustained in such an interval will be within the course of employment if

it occurred at that place or while the employee was engaged in that

activity unless the employee was guilty of gross misconduct taking him

or her outside the course of employment. In determining whether the

injury occurred in the course of employment, regard must always be had

to the general nature, terms and circumstances of the employment 'and

not merely to the circumstances of the particular occasion out of which

the injury to the employee has arisen' (Danvers (supra) at 537)."

15. In my opinion the learned Commissioner cannot be said to have misdirected himself by applying the Henderson-Speechley test. In the first place he did not specifically purport to apply it in any event and although the High Court has said that that test is no longer an adequate universal formulation of the criterion for determining which injuries are work related and those which are so remote from the notion of the worker's employment as not to call for compensation by the employer, it remains as Deane J said in Commonwealth v Lyon (1979) 24 ALR 300 at 303:

"... plainly a most useful aid as a criterion of inclusion in the

concept of 'course of employment' (ie if the test is satisfied, the

respondent was doing something in the course of his employment)."

16. Toohey J in a separate judgment in which he agreed that the appeal should be allowed said he would retain the words "in order to carry out his duties" whatever their imperfections and would, notwithstanding that there would always be borderline cases, adhere to the Henderson-Speechley formulation which he described as one "which sufficiently identifies the principle underlying 'in the course of the employment'" (at 490-491).

17. Equally in my view the principles relied upon by the learned Commissioner and which he cited from the judgment of Adam J in Park v Peach (supra) in no way conflict with anything laid down in Hatzimanolis. The activity in question, viewed solely from the recreational point of view, had a tenuous connection with the respondent's employment, but when regard is had not only to the circumstances of the particular occasion out of which the injury arose but also to the general nature, terms and circumstances of her employment, the connection becomes far less remote and the injury capable of being found by the tribunal to which that task was entrusted to have arisen in fact in the course of her employment. Among the circumstances were that she was a member of the teaching staff of a private co-educational school whose social and sporting interaction on campus with the staff of a similar school was likely to promote the exchange of professional information to the benefit of all participants and their respective employers by improving the quality of the teaching skills they were employed to utilise in the education of their pupils.

18. In my view it was open to the learned Commissioner to reach the conclusion he did and no error in his reasoning process has been demonstrated. That being the case, it is unnecessary to consider the alternative basis of the worker's claim, namely that the injury occurred whilst she was travelling between her place of employment and her residence, such injury not having been suffered during any substantial interruption or deviation from the journey made for a reason unconnected with her employment.