Vdovic v Peter A Cox & Associates Pty Ltd

COUNSEL : Claimant - B. O'Sullivan Opponent - W. J. Roche SOLICITORS : Claimant - Bolzan & Dimitri Opponent - Glover & Glover CATCHWORDS : Workers compensation; whether injury suffered in course of employment ACTS CITED : Compensation Court Act 1984 Workers Compensation Act 1987 (NSW) Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 CASES CITED: Henderson v Commissioner of Railways (WA) (1937) 55 CLR 281 Humphrey Earl Limited v Speechley (1951) 84 CLR 126 Whittingham v Commissioner of Railways (WA) (1933) 46 CLR 22 DECISION : Application dismissed with costs

VDOVIC v PETER A COX & ASSOCIATES PTY LIMITED JUDGMENT 1 DAVIES AJA: This is an application for leave to appeal from a decision of Campbell Chief Judge of the Compensation Court dismissing a claim for compensation brought under the Workers Compensation Act 1987 (NSW). Under s 32 of the Compensation Court Act 1984 (NSW), an appeal may be brought on a point of law or on a question as to the admission or rejection of evidence. 2 The claimant, Mr John Vdovic, had, on 26 October 1995, suffered a broken left leg while playing speed soccer for a team known as the "Misfits". The issue is whether that injury was suffered in the course of the claimant's employment. The opponent, Peter A Cox & Associates Pty Limited, carried on the business of insurance investigation. The claimant was an employee or a deemed employee of the opponent and held a sub-agent's licence to carry out investigations on behalf of the opponent. He was remunerated on a piece work basis. 3 The claimant's case as put to the learned trial judge was that Mr Maurice Geerlof, the manager of the opponent, was in a position to influence the amount of work that he received and that, on this particular evening, he played in the team the "Misfits", although he was reluctant to do so, because he feared that he might lose work if he did not. He said, inter alia, that Mr Geerlof who organised the "Misfits", called him into his office and said, "Turn up tonight, we need players". He said that he was informed that Mr Geerlof and two other investigators would be playing in the team as would two young men, brothers, who were the sons of a GIO claims manager. The claimant gave evidence that GIO was a major source of work for the opponent company, and that he considered it was desirable in his and the opponent's interests that he participate. 4 The trial judge accepted that, if Mr Geerlof required, or expected, the claimant to play for the team as part of a public relations exercise for the opponent, the activity and the subsequent injury would have occurred in the course of his employment. 5 However, evidence was given which placed a different light upon the nature of the activity. Evidence was given by Mr Geerlof and by a Mr Mularchuk, another sub-agent of the opponent, which was accepted by the trial judge and which showed that the team the "Misfits" was a privately organised team which was not run in the interests of the opponent company or its employees. The opponent company played no part in its activities and its expenses were met by the individual participants. Mr Mularchuk said that he was the principal organiser of the team which developed out of his connection with a university gymnasium. He said that he became aware of the possibility of playing in an organised competition and that he asked a few friends and workmates, but mostly people from the gym, if they were interested in playing on a regular basis. Enough people showed an interest and thereafter the team which came to be called the "Misfits" played on a weekly basis. Mr Mularchuk said that there was usually a different blend of players each week, the central core being his friends and fellows from the gymnasium and sometimes others from work and that "There was always a scramble if we had to make up the numbers". 6 Mr Mularchuk gave evidence that, on the night in question, there was no player involved who had any connection with GIO but he said that two sons of the manager of QBE, an insurance company, played and that there was no benefit to the opponent company from their participation. 7 Mr Geerlof, who on the claimant's evidence was the captain of the team, confirmed Mr Mularchuk's evidence. He said that he would have spoken to the claimant about playing in the team at the beginning of the competition and that the claimant did not express any reluctance about playing for the "Misfits". He denied that, on the night in question or on any other occasion, there was any conversation between himself and the claimant whereby the claimant asked, "I suppose if I don't agree to play work might get a bit slow". Mr Geerlof said that the claimant did not express reluctance to play when asked to do so. He said that the opponent company had no involvement with the team. He said that the claimant played three or four times that he could remember but he may have played more. 8 The trial judge accepted the evidence of Mr Mularchuk and of Mr Geerlof as he was entitled to do. The trial judge said: " On the evidence before me I do not think it is established that the applicant's playing in the game of soccer had anything to do with his employment with the respondent other than that employment brought him into proximity with others who played in the social team, the ' Misfits '. That association is not sufficient to establish that the applicant's injury arose out of or in the course of his employment with the respondent. " 9 In order to determine whether an injury occurs "in the course of employment" it is necessary to look not only to the actual work which a person is employed to do but also to the natural incidents connected with that class of work. See Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 478 per Mason CJ, Deane, Dawson and McHugh JJ. Their Honours referred at 480 to the dictum of Dixon J in Whittingham v Commissioner of Railways (WA) (1933) 46 CLR 22 at 29 that: " the accident must happen while the employee is doing something which is part of or is incidental to his service. "

At 479 their Honours referred to dicta of Dixon J in Henderson v Commissioner of Railways (WA) (1937) 55 CLR 281 at 294 and in Humphrey Earl Limited v Speechley (1951) 84 CLR 126 that the test whether an injury had been sustained in the course of employment ultimately depends upon whether the workman was doing something which he was " reasonably required, expected or authorised to do in order to carry out his actual duties ". The word " actual " was omitted in Speechley . 10 In Hatzimanolis their Honours went on to consider cases dealing with those instances where an injury occurs outside ordinary work time. At 482 their Honours said: " 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 all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way.

At 483, their Honours observed that an injury in the course of employment was more readily found when it occurred during an interval or interlude occurring in an overall work period than if it occurred when work had ended. Their Honours said: " For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. "

At 484 their Honours concluded: " 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. " 11 I see nothing in the trial judge's reasons for judgment which is inconsistent with those principles. 12 A submission put was: " His Honour was wrong to require that the claimant demonstrate that the employer both required or expected the claimant to participate as part of a sporting team and that further, such team be part of a public relations exercise for the employer in order to establish that injury which did occur during such activity occurred in the course of the claimant's employment with the employer. " 13 However, what his Honour found was that the claimant was neither required nor expected by the opponent company to participate in the speed soccer team. His Honour accepted the evidence of Mr Mularchuk and Mr Geerlof that the team was a private team which had no connection with the opponent company and that the match in which the claimant played had no benefit so far as it was concerned. It followed that the facts did not meet the tests which I have mentioned. 14 Another group of submissions all raise issues which have little or no bearing upon the tests to be applied in workers' compensation cases. They are allegations of estoppel, unconscionable conduct and unconscientious use of the relationship which existed between Mr Geerlof, the opponent's manager, and the claimant. These submissions fail not only because the trial judge rejected the claimant's evidence, preferring the evidence of Mr Mularchuk and Mr Geerlof, but also because the principles were irrelevant. Had the trial judge accepted the claimant's evidence, he would have found in his favour and would have done so without having to rely upon any principle of estoppel or unconscionable conduct. 15 The trial judge did not expressly discuss the following particular part of the claimant's evidence: " Q. Yes? A. I believe he chose Thursday night so there wouldn't be any clash and I could always make it. Q. Yes? A. At that point I still had no intention of playing but he was persistent and it came to a point where I straight out said : 'I guess if I don't play works going to slow up my way'. Q. At that point what did he say to you? A. More in body language. He went back in the chair, his office chair, put his hands on his head and grinned a winners grin in other words. Q. How did you feel about that? A. Well personally I didn't want to socialise with Maurice to start with. I just wanted to keep it on a business level. Like I said I was already playing with another team, I hadn't put my name down and my friend's organising a touch football team. I just didn't want to play but I did ... "

However, Mr Geerlof's denial that any such conversation took place, the weakness of the evidence, the assent being expressed in " body language ", and the inconsistency between the evidence and the nature of the team as described by Mr Mularchuk and Mr Geerlof clearly led his Honour to reject it. Moreover, the evidence in itself, were it accepted, would not be sufficient to establish that the soccer activity was undertaken in the course of the claimant's employment. An additional point I wish to make is that one would not expect the claimant's question, " I guess if I don't play work's going to slow up my way? ", in the context in which it was asked, to have been taken seriously, and there was no response from Mr Geerlof which indicated that it was. 16 If anything remains of the claimant's evidence it could be only that, when asked by the manager of the opponent company to play in the soccer team, he did so because he considered that to do so might benefit his work opportunities. That in itself would not be enough to give to the soccer match the necessary relationship with the employment so as to characterise it as an incident of the employment. For that relationship to exist, it would be essential that the employer induced or encouraged the claimant to play in the soccer team. The trial judge found that that did not occur, for the team was a private team, its only connection with the employment being that some members were employees of the opponent 17 For these reasons the application for leave to appeal should be dismissed with costs. 18 SHELLER JA: I agree. 19 GILES JA: I also agree. 20 SHELLER JA: The application for leave to appeal is dismissed with costs. **********

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