Whiteley, Rachel Ann v The State of South Australia

"Evans: How are you going. I'm going for some methadone, what are you doing?

Evans: You fucking bitch you gave me a hard time. You remember you fucking slut."

3 Not surprisingly the worker felt threatened and offended by this outburst . In reply to it she said, "I've never given you a hard time and I don't know what you're talking about". Evans replied, "You fucking slut course you remember giving me a hard time you fucking bitch". Clearly feeling threatened by Evans presence, the worker got up out of her seat and exited the bus by the driver's door at the top end of East Avenue by the tramline. She then walked over to the city bound tram. Evans remained on the bus as it pulled away after the worker had got off. As she waited at the tram, she looked down the line and saw a tram approaching at a distance. It would seem that Evans had alighted from the bus and had followed her and when he was about three feet away he said, "Catching the fucking tram are you. Yes, you you fucking bitch you just paid me out in the bus with all those people listening". The worker said, "I haven't got a problem with you". Evans then said, "I haven't got a problem with you". He followed her and then in a raised voice said, "See you fucking bitch now I am paying you out like you did me, you remember you were wearing a fucking white jumper, you fucking slut".

4 The worker felt threatened and stressed. The tram pulled up and Evans entered the front of the tram. The worker told the conductress that she would catch another and was relieved to see the worker in the tram move off into the distance. She did not catch another tram, fearing that Evans might be waiting for her in Victoria Square. She eventually caught a bus into town but was apprehensive whilst there, fearing that she might again be confronted by Evans. The worker was subsequently treated for an adjustment disorder and has sought compensation pursuant to the Workers Rehabilitation and Compensation Act ("the Act") to recover expenses that she incurred pursuant to s32 of the Act.

5 The worker's claim for compensation has been rejected on the basis that it did not arise out of circumstances that are compensable for the purposes of the Act.

6 The primary submission advanced on behalf of the employer is that at the time of her disability the worker was in the course of a journey for the purposes of s30(5) and that because she was not carrying out duties at the time, the circumstances of her disability do not fall within the ambit of that provision. The provision relevantly provides as follows:-

"30(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; ..."

7 The provision is clearly one of limitation: Conte v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Olivetti Australia Pty Ltd) JD49/1998; Russo v WorkCover Corporation/Mercantile Mutual Insurance (SA) Workers Compensation Ltd (Mescoe and A Savas) JD70/1999.

8 Although the use of the expression "arising out of or in the course of employment" is common place in workers compensation legislation and in its usual context it generally envisages no more than a temporal or causal connection, it must be noted that its consideration is normally undertaken in determining whether or not the Act applies. Given that legislation of this type is beneficial in character, it is scarcely surprising that the expression has over the years been liberally and expansively construed. But its purpose in s30(5) is quite different. In the context of that provision it has a limiting effect, by imposing obstacles in the pursuit of compensation that do not ordinarily exist. Because that is its purpose, I do not think that a liberal or expansive construction of its meaning is called for. Applying the expression from that premise, I conclude that the section does not apply to the facts of this case. Here, the only relevance of the worker's travel and her presence upon the bus was that it was the scene of the event that gave rise to a disability. In all other respects the worker's travel and the incident giving rise to her stress were unconnected. In my view, s30(5) does not feature.

9 The Crown would have it that even so the disability is nonetheless not covered by the Act. It says that all that can be said is that there is a mere connection with employment and that is insufficient to satisfy the relevant statutory criteria. It was said:-

"The connection is simply that a former prisoner that the applicant knew of in her employment accosted her outside of her employment on a day off, and the actions of the third party, the former prisoner, were unrelated to her employment and were outside the employee's [sic] control or knowledge, and the applicant had no current responsibility for this former prisoner, nor did she owe any duty towards this prisoner or former prisoner by reason of her employment."

10 I accept that in order to satisfy the relevant statutory provisions, it is necessary for the worker to show more than that but for her employment the disability would not have occurred. But, the suggested test for causation posed by the Crown is not one, which I think the Act requires. The meaning of the expression "arising out of employment" was discussed in a number of decisions of the House of Lords earlier this century. In Thom v Sinclair [1917] AC 127 for example, Lord Shaw of Dunfermiline said of the expression:-

"It applies to the employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought with the zone of special danger and so injured, it appears that the broad words of the statute `arising out of the employment' apply."

11 Lord Sumner in Lancashire and Yorkshire Railway Co v Highley [1917] AC 352 at 372 spoke of the applicability of the expression in these terms:-

"I doubt if any universal test can be found. Analogies, not always so close as they seem to be at first sight, are often resorted to, but in the last analysis each case is decided on its own facts. There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: was it part of the injured person's employment to hazard, to suffer, or to do that which it caused his injury? If yeah, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out the employment".

12 In Upton v Great Central Railway Company [1924] AC 302 at 306 Viscount Haldane LC stated that the expression: -

"... imports some kind of causal relationship with the employment, but it does not logically necessitate direct or physical causation"

13 These and other cases clearly establish, that accidents that happen outside the workplace and outside normal working hours, that can be attributed to some added peril or risk arising from employment, can satisfy the notion of arising out of employment, even though that peril or risk might be outside of the employer's control.

14 Although the disability that is the subject of the claim for compensation is clearly an illness or disorder of the mind such that the worker must establish in accordance with s30A, that employment was a substantial cause, there is no basis to conclude that its satisfaction cannot be achieved if the precipitating event was out of the employer's control. That would be introducing a qualification that the Act does not stipulate. All that is required is a common sense evaluation of the relevant facts and a determination as to whether those facts satisfy the words of the relevant statutory provisions: WorkCover v Sherriff (unreported Supreme Court delivered 1 October 1996 S5831). I now proceed to undertake that task.

15 Whilst it is true that all members of public might be subjected whilst in public places to threats and abuse by others, and that for all we know the worker may not have been the only one to have been subjected to Evans' abuse, I find that the risk to the worker of this occurring was substantially increased because of her exposure to him and people like him in the course of her work. I think I am permitted to know that persons with drug addictions or drug related problems and persons with abusive or violent dispositions are likely to be more plentiful in the prison population including those in the Adelaide Remand Centre, than in the general population. I think I am entitled to infer that the worker would meet and have to deal with such persons whilst carrying out the duties of her employment. I further think that I am entitled to infer that such encounters would significantly increase the risk of threatening and abusive encounters with such persons outside of working hours. The evidence establishes to my satisfaction that the worker met with and had to deal with Evans whilst carrying out her duties as a correctional services officer. The evidence also establishes to my satisfaction that Evans was a person of abusive disposition. Because of her work and her association with Evans and people like him, the worker was exposed to a greater risk than an ordinary member of the public, to abusive and threatening encounters because, she was statistically more likely to attract the attention of a person of abusive disposition, than an ordinary member of the public. Moreover, as a result of their previous encounter, Evans was more likely to abuse the worker than an ordinary member of the public, and he was more likely to abuse her in a threatening way.

16 Although so far as my research has revealed, there are no contemporary Australian authorities that show that circumstances such as these might attract an entitlement to compensation under workers compensation legislation, one does not need to look too far abroad to find examples of findings of compensability in circumstances not dissimilar to these under consideration. These include, Graybeal v Board of Supervisors of Montgomery County 216 SE 2d 52 (1975), a case in which the claimant was a county prosecutor who was severely injured as a result of a bomb placed in his residence by a person whom he had successfully prosecuted for second degree murder more than five years earlier. The Supreme Court of Virginia had no difficulty in concluding that the subject injuries arose out of the prosecutor's employment. Indeed, the Court went on to find that the circumstances satisfied the additional qualification that was necessary to meet in that case, namely that the injuries arose in the course of the worker's employment. Through the same process of reasoning, the Supreme Court of South Dakota in Bearshield v City of Gregory 278 NW 2d 166 (1979) found that the widow of a deceased policeman was entitled to compensation as the result of the death of her husband who was murdered in revenge for actions undertaken by him in the course of his duties as a police officer. The Court found that the causal relationship with employment had clearly been established and applying the reasoning of the Court in Graybeal (supra) further found that it arose in the course of the deceased's employment. I do not regard these decisions as authoritative. I merely mention them as demonstrating that the cover extended by workers compensation is not limited to disabilities that happen at work and that a causal connection with employment can be found to exist even though the precipitating event may have occurred long ago.

17 I find that the incident concerning Evans occurred because of the worker's employment as a correctional services officer. In my view, the causal relationship between the subject disability and the worker's employment is sufficient to warrant a finding that the worker's employment was a substantial cause of the disability.

18 In all of the circumstances, I think that the test of compensability contained in s30A has been met. Thus in my opinion, the worker is entitled to compensation pursuant to the Act. The parties have not addressed me on any issues as to quantum. I therefore adjourn further consideration of this judicial determination to enable the parties to reach agreement in respect thereof. In default of their agreement I will relist this matter for further hearing so that this issue can be determined.

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.