Werner v Workcover/Allianz Australia

3 The context of the applicant's employment is that her employer is Queensland based and whilst she lives in Adelaide and works from the employer's office here her work involves frequent interstate travel. The employer's Adelaide office has two staff one of whom is the applicant. It was a term of the applicant's contract with the employer that any expenses incurred by her on its behalf would be reimbursed by the latter. Typically the applicant would be reimbursed for out of pocket expenses incurred whilst travelling such as for parking, petrol, road tolls, airport luggage fees, meals and sundry items. In addition amounts expended by her for office expenses such as for tea, coffee, postage and stationery might also be reimbursed.

4 It was the applicant's evidence in a written statement tendered on the hearing (BD 5 - 7) that the day on which she was injured was a Friday and a day on which wages had been paid into her bank account by the employer for the preceding fortnight. She said that at that time she had bookings in place to attend a conference in Brisbane ("the Brisbane conference") "prior to the next pay period". The statement continued;

"On 17th March at approximately 3.30 pm I left and Adelaide office to walk to the bank on the corner of Pirie and Gawler Place. I was going to the bank to draw my salary for living expenses and to ensure that I had sufficient cash to cover any expenses which might be incurred during the following fortnight, when I would travelling (sic) to Brisbane to attend the Share the Care Conference. It was usual to draw a reasonable sum of money for living and work related expenses on or about the Friday of each pay fortnight. The amount could vary according to the future needs.

It was my intention to go to Kings Coffee House in Gawler Place after I had been to the bank, to have some lunch and to read and review some work related documents which I carried with me in my bag, while eating my lunch. This was a fairly common practice for me, since I often draft an outline for an editorial or read work related newsletters, journals etc and do some planning over lunch. On this particular day, the other Adelaide office based consultant had asked me to enquire as to whether King's Coffee House had a breakfast menu, as she was trying to organise a breakfast meeting during the following week.

While walking along Gawler Place to the bank, I tripped on the footpath and fell to the ground, suffering injuries to my right knee, arm and forehead."

5 During the course of her oral evidence which supplemented her written statement the applicant was subjected to a searching cross-examination by Ms Kelly of counsel for WorkCover. In the result I was left with reservations about the evidence of the applicant that one of the purposes of going to the bank was to draw money to cover expenses which might be incurred for the Brisbane Conference.

6 I say this having regard to a number of factors including;

* The demeanour of the applicant when pressed on this issue.

* The answer to the question `What she was doing' as contained in the Notice of Injury and the compensation claim.

* The pattern of the applicant's banking activities as disclosed by her banking records;

* The applicant's vagueness as to the time of the Brisbane conference.

7 However that may be I am content to proceed in this matter on the basis that the applicant's injury occurred whilst she was walking to the bank to withdraw money needed primarily for domestic purposes although an ancillary purpose of the bank visit was to put herself in funds for out of pocket expenses for the Brisbane conference. Following her attendance at the bank it was the applicant's intention to proceed to a coffee shop where she would have lunch, do some work related reading and make an enquiry on behalf of a colleague in relation to catering for a possible work connected breakfast meeting.

8 The relevant provisions of s 30 of the Act are as follows:-

"(1) Subject to this Act, a disability is compensable if it arises from employment.

(2) Subject to this section, a disability arises from employment if -

(a) in the case of a disability that is not a secondary disability or a disease - it arises out of or in the course of employment; or

(5) A disability that arises out of, or in the course of, a journey arises from employment only if -

(a) the journey is undertaken in the course of carrying out duties of employment; or

(i) the worker's place of residence and place of employment; or

(ii) the worker's place of residence or place of employment and -

an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or

a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability,

and there is a real and substantial connection between the employment and the accident out of which the disability arises.

(6) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).

(7) The journey between places mentioned in subsection (5)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker.".

9 It was the submission of Ms Kelly that when injured the applicant was in the course of a journey within the meaning of s 30(5) of the Act and consequently its more restrictive provisions were applicable.

10 The meaning of the word "journey" was discussed by Judge Gilchrist DP in Paparella v WorkCover GIO Australia (Kangaroo Island Ferries Pty Ltd) JD57/1998 at 6;

"The word `journey' is not defined in the Act but there is no reason to assume that it is limited to travels along public thoroughfares or the like, not that that would necessarily be decisive here. The Websters Dictionary refers it to being `the act or an instance of travelling from one place to another', but I think that more is required than that. If that were the position, then it might follow that whenever a worker was in motion and not stationery (sic) he or she would be regarded as upon a journey. I am inclined to think that the more restrictive meaning contained within the Oxford Dictionary, which refers to it being an expedition over some distance is more likely to reflect what Parliament had intended. Not that distance necessarily provides the answer. I say that because the word `distance' is as capable of as many shades of meaning as the words `place' or `journey'. But what I think it means is moving from one definite place or point over some distance to another definite place or point. The extent of the distance might depend upon the nature of the place or point. It will be, as is inevitably the case, a matter that will turn upon the relevant facts. The two places might be sufficiently unrelated that although geographically proximate, travel even over a short distance, might fairly be regarded as a journey. On the other hand, they might be so closely connected, that travel, even over some distance, might not be so regarded."

11 I respectfully adopt the approach of His Honour to the circumstance of this case.

12 In this case although I was not given precise details of the route to be taken by the applicant or the distances involved it would seem that her "lunchtime" activities were to take place within one street (which I take to be the length of a city block) across the road from her office. The activities involved in essence a walk to a bank to withdraw money, then to a coffee shop for lunch and then, presumably a walk back to work. In my respectful view it would involve torturing the meaning of the word "journey" to suggest that in the lunchtime perambulations of the applicant in the circumstances of this case (or any part of them) she was in the course of a "journey" within the meaning of the Act. Accordingly I reject the argument of Ms Kelly to the contrary.

13 Turning then to the question whether the applicant's injury is compensable pursuant to s 30(1) and 30(2) of the Act. In the context of this case the question to be answered is whether the injury (disability) arose "out of or in the course of employment.

14 The meaning of this expression was discussed by Doyle CJ (Duggan J concurring) in Peet v Workers Rehabilitation and Compensation Corporation unreported Full Supreme Court, SCGRG - 95 - 1590 delivered 14 August 1996 at 6 as follows;

"This expression has a long history in workers' compensation law in this State and elsewhere. The expression does not identify a precise concept. It is clear that the course of employment extends beyond performance of the actual work or duties that a worker is employed to do, and beyond things that the worker is obliged to do. The end result is, as Dixon CJ said in Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1993) 46 CLR 22 and 29 that:-

`... the sufficiency of the connection between the employment and 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.'

In Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 at 294, Dixon CJ said:

`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 in which work is done and on what, as a result, the workman is reasonably required, expected or authorised 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 ...'

These words have often been used by courts as a guide to the application of the statutory provision, despite the fact that the introductory words identify a specific factual setting.

This approach was approved by the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1972) 173 CLR 473 at 479, but it is again to be noted that Dixon CJ and the Court in Hatzimanolis were dealing with an injury sustained during intervals between work.

In Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1966) 122 CLR 529, Barwick CJ said (at 536) that the approach in Henderson `should be applied liberally and practically'.

It is also clear, as the High Court indicated in Hatzimanolis, that the approach of the court must be informed by an understanding of contemporary practices of workers and employers, and the contemporary understanding of what is incidental to employment.

In Hatzimanolis the High Court paid particular attention to injuries occurring between periods of actual work. The majority said (at 483 - 484):

`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. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch within such a period occurs as an interlude or interval within a overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home ... 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 the particular way.'

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

And one must always bear in mind, as the majority said in Hatzimanolis (at 484):-

`In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen": Danvers (1969) 122 CLR at p.537'."

15 In my view the injuries in this case did not arise out of or in the course of the applicant's employment with the employer even acknowledging that they occurred in an interval within an overall period or episode of work. It seems to me that the lunchtime activities of the applicant were primarily to attend to her personal needs namely to draw monies for living expenses and to partake of refreshment. Her other activities were peripheral to those personal purposes. Although it might be said that the employer would gain some collateral or incidental advantage as a result of those personal activities in that incidental to them the applicant intended to do things which bore a relationship to her work role (the withdrawal of monies in anticipation of expenses likely to be incurred in relation to the Brisbane conference) or were of value to the employer (reading whilst at lunch and the enquiry about the breakfast menu) the link between the employment related activities and the personal nature of the other activities is to my mind too tenuous for it to be fairly said that her injury arose out of or in the course of the employment. In summary I can do no better than respectfully adopt the words of Doyle CJ in Peet at 11 in relation to this case:-

"I appreciate that I have given no precisely expressed reason for my conclusion. In the end, as with all matters involving sufficiency of connection, there is an element of judgment and impression which defies precise explanation. All I can say is that to my mind the link with the worker's work, with his duties of employment, seems to me too remote. I acknowledge the link with employment, but something more than that is required."

16 In the circumstances then the rejection of the applicant's claim by the agent of the WorkCover Corporation of 18 April 2000 is confirmed.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.