Federal Court of Australia

Dring v Telstra Corporation Ltd [2021] FCAFC 50

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    At 2.30am on 14 April 2016, the Appellant in the present proceeding, Ms Danielle Dring, slipped and fell outside a bathroom near the reception area of the hotel at which she was staying. Ms Dring was attending a workshop organised by her employer, Telstra Corporation Limited (“Telstra”). The workshop took place over a number of days and Telstra had booked Ms Dring into the hotel.

2    Ms Dring made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Safety, Rehabilitation and Compensation Act”). She claimed that she had suffered an injury “arising out of, or in the course of” her employment within the meaning of and for the purposes of that Act.

3    Telstra rejected the claim. Ms Dring sought review of that decision by the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal affirmed the decision declining to pay compensation: Re Dring and Telstra Corporation Limited [2018] AATA 3149. Ms Dring then “appealed” that decision to this Court. The appeal was dismissed: Dring v Telstra Corporation Limited [2020] FCA 699.

4    Ms Dring now appeals to this Court.

5    The appeal is to be dismissed with costs.

The claim for compensation – in the course of employment

6    Compensation is relevantly payable under the Safety, Rehabilitation and Compensation Act if an employee suffers an “injury”: s 14.

7    Section 14 of the Safety, Rehabilitation and Compensation Act provides as follows:

Compensation for injuries

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

  (2)    Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)    Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

8    The requirement that the “injury” be suffered “in the course of” employment derives from the following definition of “injury” in s 5A of the Safety, Rehabilitation and Compensation Act, namely:

Definition of Injury

…

injury means:

…

(b)    an injury … suffered by an employee, that is a physical … injury arising out of, or in the course of, the employee's employment; or

…

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

9    That which constitutes an injury “arising out of, or in the course of” employment has oft attracted judicial analysis.

10    Relevantly for present purposes it is sufficient to refer to three decisions: Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (“Hatzimanolis”); Comcare v PVYW [2013] HCA 41 (“PVYW”), (2013) 250 CLR 246; and Westrupp v BIS Industries Limited [2015] FCAFC 173, (2015) 238 FCR 354 (“Westrupp”).

11    In Hatzimanolis there was a claim for workers compensation. Mr Hatzimanolis worked for a period of about three months at a remote mining camp in Western Australia. The employer provided rent-free accommodation for workers in a camp and two vehicles for transport. During the course of a trip to Wittenoom Gorge, organised by a supervisor and some 400 kilometres from the camp, one of the vehicles overturned and Mr Hatzimanolis suffered serious injuries. Compensation was payable under the Workers Compensation Act 1987 (NSW) if the injury was one “arising out of or in the course of employment”: s 4. On appeal to the High Court it was concluded that the injury was suffered in the course of his employment. Mason CJ, Deane, Dawson and McHugh JJ reviewed some of the earlier authorities and went on to observe (at 482) that:

… 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 [The Commonwealth v Oliver (1962) 107 CLR 353] and [Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529].

Their Honours continued:

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 authorised, 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 authorised, 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 ...

And their Honours observed (at 483 to 484):

… 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.

Moreover, 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. 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)

12    Next, in PVYW the appellant had been required by her employer to travel to a country town and had stayed at a motel booked by her employer. During the course of one evening she had sexual intercourse with an acquaintance. During that encounter a glass light fitting above the bed was pulled from its mount and struck her on the nose and mouth. She suffered facial and psychological injuries. A decision refusing compensation was affirmed by the Tribunal. An appeal was allowed and a further appeal to the Full Court was dismissed. This Court, both at first instance and on appeal, concluded that the injury had been suffered during the course of her employment. A further appeal to the High Court prevailed and the claim for compensation was rejected. In introducing the ambit of the submissions being advanced, French CJ, Hayne, Crennan and Kiefel JJ observed (at 254 to 255):

[8]    The respondent may be taken to draw the following from what was said in Hatzimanolis. The employer had directed her to be at a location away from her permanent place of work and her residence. While at that location, she is therefore seen as carrying out an overall period of work. Her presence at a particular place — the motel — creates an interval in that period whilst she is at that place. An injury occurring in that interval is in the course of employment.

[9]    If this is what Hatzimanolis conveys, it means that, absent gross misconduct on the part of an employee, an employer who requires an employee to be present at a particular place away from their usual place of work will be liable for any injury which the employee suffers whilst present there. It means that the employer has become the insurer for the employee during the time that the employee is at the place. That would be so even though the injury was suffered in the course of an activity which was clearly unrelated to the employment.

[10]    These are odd results, yet results which the respondent says must follow because Hatzimanolis makes liability for an injury depend upon it simply occurring within a period of time — that is, the interval. If this is the natural consequence of what was said in Hatzimanolis, that decision would need to be reconsidered. It would need to be reconsidered because it would otherwise effect an undue extension of an employer’s liability to pay compensation under the SR&C Act.

(footnote omitted)

In further emphasising the need for there to be “a connection between the injury, the circumstances in which it occurred and the employment itself”, their Honours stated (at 261 to 262):

[34]    It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer’s liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee’s employment. It did so by characterising the interval by reference to the employer’s inducement or encouragement. The employer’s liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer’s liability beyond that.

[35]    Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.

[36]    Moreover, 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.

[37]    That this must be so is confirmed by a consideration of the legal reasoning involved in applying the principle stated in Hatzimanolis to the facts of a case. That process of reasoning does not commence with the fact of the employer’s inducement or encouragement. The joint reasons sought to direct attention to the new principle and therefore stated it out of the order in which the enquiries inherent in applying the principle would arise for consideration.

(footnote omitted)

13    In thereafter addressing an injury suffered at a place of employment, their Honours reasoned (in part) as follows (at 262 to 264):

Injury and place

[40]    There is a further reason for rejecting the respondent’s contention. She was not injured whilst present at a place in the sense in which that expression is to be understood in the joint reasons in Hatzimanolis. An injury occurs at a place when the circumstance of the injury is referable to the place. The circumstances of Danvers, which was the basis of this criterion of liability, make this plain. They explain why the mere presence of an employee at a place in circumstances where an injury is associated with that place may be sufficient to bring that injury within the course of the employee’s employment.

…

[43]    ... The principle in Hatzimanolis focuses instead upon what the employer might be taken to have induced or encouraged the employee to do. That question is to be determined by reference to the matters identified in Danvers and restated in Hatzimanolis as relevant: the general nature, terms and circumstances of the employment.

…

[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.

(footnote omitted)

In returning to the need for there to be a “connection between the circumstances in which the employee sustains injury and the employment”, their Honours further stated at (265 to 268):

Association between circumstances of injury and employment

[50]    It has earlier been observed that 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.

[53]    The connection or association spoken of is not the causal connection which is attributed to the expression “arising out of … the employee’s employment” in the definition of “injury” in the SR&C Act. It is accepted that compensation may be payable in respect of an injury which is suffered “in the course of” the employee’s employment notwithstanding that there is no such causal connection. The connection presently spoken of is by way of an association with the employment. In Kavanagh v Commonwealth [(1960) 103 CLR 547 at 557], Dixon CJ said that “no direct … causal connexion … is proposed as an element necessary to satisfy the conception of an injury by accident arising in the course of the employment but only an association” with the employment.

…

[56]    Another case referred to in Hatzimanolis which involved a rejection of the injury being in the course of employment was Humphrey Earl Ltd v Speechley [(1951) 84 CLR 126]. The employee was injured in his lunch break. His work involved servicing machines at shops at various locations. He had commenced such a task at one shop and stopped for lunch. He desired a particular food which was not available nearby. To obtain it necessitated a journey to somewhere further away. He was injured in a road accident on the return journey.

[57]    Dixon J said that the employee being at the shop for the purpose of his duties and having lunch would be in the course of his duties “provided that it was reasonably related to the exigency occasioned by his duties”. However, his Honour said, “it should be reasonably connected with the particular situation which the performance of his duty to his employer had created.” Whilst the eating of lunch itself was not for the purpose of his duties, the conditions of the employment may make it incidental — but it “cannot be stretched to make everything he chooses to do during the interval … incidental to his employment.” If he “so far deviates” on a purpose of his own, that purpose cannot be considered to be in the course of employment. McTiernan J considered that the facts were insufficient in law to establish the connection between the injury and the employment connoted by the words “in the course of the employment”.

[58]    Nothing said in Hatzimanolis suggests that an association between the circumstances in which injury is suffered by an employee and the employment is not necessary. In stating the purpose of earlier tests as being, properly, to limit compensation for injury which is work-related, the joint reasons in Hatzimanolis may be taken to acknowledge the need for that association or connection with the employment.

[59]    This is not to suggest that there should be added to the application of the principle in Hatzimanolis a separate test of connection or association. That would run counter to what Hatzimanolis sought to achieve and the method by which it did so. Whilst the decision did not doubt the correctness of the object of earlier tests, it was able to effect the necessary connection by other means. Instead of testing for connection, as by the enquiry whether something done was incidental to employment, it inquired whether the employer had induced or encouraged that which was done. The connection or association it achieves with the employment is a by-product of the principle, but it is not itself a test.

…

Conclusion

[61]    It may be accepted that the purpose and the effect of the principle stated in Hatzimanolis was to create an interval between periods of actual work, to better explain the connection that an injury suffered by an employee in certain circumstances has to the employment. It did so by reference to the fact that the employer induced or encouraged the employee to do something or be somewhere in particular and the fact that the employee did so and was injured. The two circumstances identified by Hatzimanolis were where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage; or where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be. An injury sustained in these circumstances may be regarded as sustained in the course of the employee’s employment. Properly understood, whilst the inducement or encouragement by the employer may give rise to liability to compensation, it also operates as a limit on liability for injury sustained in an overall period of work.

(footnotes omitted)

14    Finally, in the third of the cases to which reference should presently be made, Westrupp, Mr Edward Westrupp had been employed as a silo operator at a remote outback mining town in the Goldfields region, north of Kalgoorlie in Western Australia. He worked on a two-week roster followed by one week off and whilst working he resided in a mining camp. The Tribunal had there affirmed a decision refusing compensation for a shoulder injury. The injury had been suffered whilst Mr Westrupp “was at the tavern for the purposes of meeting a friend and having a beer with him, not for any purposes related to his employment”: [2015] FCAFC 173 at [37], (2015) 238 FCR 354 at 362. He was “between two ordinary discrete periods of employment”. An appeal to the Full Court of this Court was successful, with the Full Court allowing the appeal and setting aside the decision of the Tribunal. The Judges who constituted the Court, Buchanan, McKerracher and Katzmann JJ, observed that the appeal “again requires consideration of Hatzimanolis, as now explained in PVYW”: at [1]. In the course of their reasons, their Honours set forth ([2015] FCAFC 173 at [52], (2015) 238 FCR at 365) para [61] of the reasons provided by the High Court in Hatzimanolis and continued:

[53]    It is important, in our respectful view, to recognise that those concluding remarks affirm the existence of two streams of analysis having their origins in two different circumstances – activity and place. Despite the obvious possibility for overlap on the facts of particular cases, we do not understand the majority judgment in PVYW to say that satisfaction of both tests is required as a condition for liability. Such a combined or composite test could not have been satisfied in Danvers.

Their Honours concluded (at 367 to 368):

[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.

[68]    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.

15    Particular paragraphs of one or other of these three decisions were the focus of attention by Senior Counsel for the opposing parties in the present proceeding.

The decision of the Tribunal

16    Albeit lengthy, it is important to reproduce those parts of the Tribunal’s reasons which it is said on behalf of Ms Dring expose error.

17    Those reasons, in relevant part, provide as follows:

[58]    There is a plethora of case law in respect of what constitutes “arising out of or in the course of the employee’s employment” and much of this was referred to during the course of the Tribunal hearing, with the Applicant and Respondent arguing relevant cases supported their contentions. Some would argue this question commenced with the Henderson-Speechley test which was summarised as “whether at the relevant time the employee was doing something which he or she was reasonably required, expected or authorised to do to carry out his or her duties”. In Hatzimanolis the test was refined to consider whether the employee was expressly or impliedly induced by the employer during a period of overall work to stay in a particular place or act in a particular way and was seen as a two-step test.

[59]    In PVYW, the majority of the High Court determined that for the employee’s injury to be compensable it must not only have occurred at the place but by reference to that place. This narrowing of the place test allows compensation for injuries which occur at the place which the employer has induced or encouraged the employee to be, accepting the place is suitable for the purpose and does not impose risk to the employee’s health and safety. The narrowing of the place test increases the requirement of the employee to demonstrate the injury has been sustained whilst engaged in activity induced or encouraged by the employer.

[60]    There is no dispute that Ms Dring was required by Telstra to stay at the Novotel in the course of performing her duties as was evidenced by the corporation booking and paying for all her associated airfares, accommodation and incidental costs. There is also no dispute that Ms Dring fell in the foyer of the Novotel. Dispute arises as to what the injury can be referenced to. The Applicant contends that the injury arose within an overall course of employment by reference to the place where Ms Dring was required to stay. It is therefore irrelevant whether Telstra induced or encouraged her to be in the foyer of the Novotel at 2:30am following an extensive personal night out “on the town” with a friend. The Respondent in contrast argues that the injury occurred by reference to the social activities she was engaged in, which occurred between two discrete periods of employment and which had no connection to Ms Dring’s work.

[61]    The mere presence of Ms Dring at a particular place which resulted in her fall is not sufficient to find she suffered a compensable injury. There must be a connection between the injury and the circumstance in which the injury was suffered. …

The Tribunal member then set forth the Conclusions in PVYW at para [60] and continued:

[62]    As the majority of the Court found in PVYW injuries which might have occurred while eating, sleeping or bathing at the place are compensable because they are activities an employer might be taken to have induced, encouraged or expected an employee to do when required to work away from home. However the injuries suffered by PVYW were not compensable as her injury had arisen as a result of the activities in which she had engaged which her employer had not encouraged or induced. As the Court noted:

Nothing said in Hatzimanolis supports the notion that the employer is liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken

[63]    The Tribunal considers that similarly, Ms Dring’s injuries were a result of the activities in which she had been engaged without her employer’s inducement or encouragement; that is, socialising with a friend for a period of more than eight hours until approximately 2:30am. They did not occur merely by reference to a place. As common sense would dictate an employee required to be at work the following day would be expected at this hour of the night to be securely in her hotel room, which had a serviceable bathroom which she could have utilised, placing her at no risk of falling on a recently cleaned floor. Her exposure to and interaction with this hazard cannot be divorced entirely from her social activities. The Tribunal also agrees with the Respondent that it was reasonable for Ms Dring to attend a dinner as part of her work-related travel. However the extent and duration of her personal activity resulted in a broken nexus with her employment and therefore the injury sustained did not arise out of or in the course of her employment, but between two discrete periods of work. It follows that she is not entitled to compensation under section 14 of the SRC Act.

[64]    As a result of this finding there is no need for the Tribunal to consider the other issues put forth by Telstra in respect of denying liability for Ms Dring’s claim. However for the sake of completion, the evidence lead on these issues will be considered briefly.

The Tribunal decision – s 44 & a question of law

18    No question was raised either before the primary Judge or this Court that the primary Judge had jurisdiction to entertain the “appeal” from the Tribunal.

19    Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“Administrative Appeals Tribunal Act”) provides as follows:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Although framed as an “appeal”, the proceedings before the primary Judge lay within the original jurisdiction of the Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 61 to 62 per Bowen CJ and Deane J; at 71 per Smithers J.

20    It is nevertheless to be constantly recalled that the “appeal” is confined to “a question of law” and does not permit of a rehearing of the claims being pursued: Brown v Repatriation Commission (1985) 7 FCR 302 at 304. Bowen CJ, Fisher and Lockhart JJ there observed:

The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.

See also: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [38] to [39], (2010) 114 ALD 8 at 19 per Marshall, Tracey and Foster JJ; Drenth v Comcare [2012] FCAFC 86 at [2], (2012) 128 ALD 1 at 2 per Rares, McKerracher and Murphy JJ (“Drenth”).

21    In Drenth, their Honours further observed that a “decision-maker does not make an error of law simply in making a wrong finding of fact”: [2012] FCAFC 86 at [26], (2012) 128 ALD at 7. But where the line is to be drawn is “not always easy of application”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Neaves, French and Cooper JJ there observed:

The principles according to which the jurisdiction conferred by s 44 is limited are not always easy of application. Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases:

1.    The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: …

2.    The ordinary meaning of a word or its non-legal technical meaning is a question of fact: …

  3.    The meaning of a technical legal term is a question of law. …

4.    The effect or construction of a term whose meaning or interpretation is established is a question of law: …

5.    The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: …

(citations omitted)

The Full Court qualified the fifth proposition by saying that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. This “general exposition” of the law has been said to be “helpful in many circumstances”: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395 to 396 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.

22    The “question of law” raised before the primary Judge was essentially a question as to whether the Tribunal had failed “to apply the correct legal test of liability to pay compensation for an injury that occurred at and by reference to a place where [Ms Dring] was accommodated by her employer for the purposes of employment…”. Such were the terms in which the first “question” was framed in the Notice of Appeal filed in the proceeding before the primary Judge.

The absence of error on the part of the Tribunal?

23    The failure to apply “the correct legal test”, it was submitted by Senior Counsel on behalf of Ms Dring, was exposed by (in particular) the following paragraphs of the Tribunal’s reasons, namely:

    para [59] and the reference to the “narrowing of the place test increas[ing] the requirement of the employee to demonstrate the injury has been sustained whilst engaged in activity induced or encouraged by the employer”;

    para [63] and the reference to the activities “not occur[ing] merely by reference to a place”; and

    para [63] and the concluding reference to the “broken nexus” and there being “two discrete periods of work”.

Although it may do considerable disservice to the careful argument advanced on behalf of Ms Dring, the argument was essentially that the injury was suffered by Ms Dring “at the place” being the Novotel on Collins Street, where her employer had “encouraged and induced” her to be, and that was the beginning and end of the analysis required by s 14 of the Safety, Rehabilitation and Compensation Act.

24    Such an argument, it was submitted on behalf of Senior Counsel for Ms Dring, was said to follow – in particular – from the decision in Hatzimanolis. Just as Mr Hatzimanolis was required by his employer to be at a particular place for a period of time, Ms Dring was required by her employer to be at a particular place for the purposes of attending a workshop. And, just as in Hatzimanolis it was concluded that the “time spent” at that place was “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” ((1992) 173 CLR at 483), this Court should “more readily perceive” the injury suffered by Ms Dring as being “within the current conception of the course of employment…”. And, just as Mr Hatzimanolis suffered an injury that took place outside the mining camp and could claim compensation, so too should Ms Dring be entitled to claim compensation.

25    Such a conclusion was said on behalf of Ms Dring to inevitably follow from the findings of fact made by the Tribunal and the endorsement by the Full Court in Westrupp that there were now “two streams of analysis having their origins in two different circumstances – activity and place”: [2015] FCAFC 173 at [53], (2015) 238 FCR at 365. Once an injury was suffered at a “place” that the employer required the employee to be, that was sufficient – so the submission ran – to found compensation. The time at which the injury was suffered was said, on this submission, to be irrelevant.

26    Contrary to this submission was the emphasis placed by the Tribunal upon the time at which the injury was suffered – 2.30am. The injury, according to the Tribunal, “did not occur merely by reference to a place”: [2018] AATA 3149 at para [63]. Nor was the time at which the injury was suffered irrelevant to the conclusions of the primary Judge. After referring to Westrupp, the primary Judge thus continued:

[55]     … As the full court’s reasoning in Westrupp (above, [53]) might tend to suggest, determining whether, in the circumstances of any given case, there exists the connection that the SRC Act requires between injury and employment will often, if not always, be a function of impression and degree.

[56]    I turn, then, to the application in this case of the principles that emerge from the authorities. Plainly, Ms Dring’s injury was sustained whilst she was not performing the work for which she was employed. Equally plainly, however, her attendance in Melbourne for the purposes of attending Telstra-related workshops should be understood as an overall period or episode of work, as opposed to a series of discrete engagements. The authorities are clear: an injury sustained during an interval or interlude within such a period or episode is more likely to qualify as having arisen in the course of an employee’s employment than one sustained between discrete working periods.

[57]    The next (or, as the majority put it in PVYW, the “essential”) question is: how did Ms Dring’s injury come about? At least to a degree, it came about because of Ms Dring’s interaction with a hazard that was peculiar to the Novotel on Collins St: namely, the wet tiles upon which she slipped and fell. Ms Dring submits that the inquiry should end there but I do not accept — and the authorities do not require — that it should. The court is neither obliged nor well-advised to ignore the proverbial elephant in the room: namely, that Ms Dring’s interaction with that hazard arose because of the time at which it materialised and the time at which she happened upon it; that is to say, at approximately 2:30 in the morning, after some eight-and-a-half hours of weeknight socialising. That observation should not be mistaken for disapproval. Ms Dring was, of course, perfectly entitled to spend her evening in the way that she did. The present inquiry is as to whether or not the circumstances betray an absence of connection between the injury and the employment. In my view, they do.

27    Notwithstanding the skill and care with which the argument was advanced on behalf of Ms Dring, it is rejected for any of four, albeit related reasons, namely:

    notwithstanding the observations and reasons for decision in Hatzimanolis, PVYW and Westrupp, those observations cannot be unquestioningly transported from the context in which those observations were made and the reasons for those observations given – it forever remains the terms of s 14 of the Safety, Rehabilitation and Compensation Act which are to be applied to the facts of any given case;

    those decisions, moreover, do not support a proposition that any injury suffered by an employee at a place at which the employee is required to be necessarily attracts compensation – even an injury at such a place nevertheless requires there to be a “connection” between the injury and the course of employment;

    the reasons of the Tribunal, properly construed, proceed from a proper understanding of those decisions and do seek to apply the terms of s 14 to the facts; and

    notwithstanding any defect in the reasons of the Tribunal, the ultimate conclusion of the Tribunal was in any event one of fact from which no appeal lay to the primary Judge.

28    At the forefront of the submissions advanced by Senior Counsel on behalf of Ms Dring was the reliance placed upon the observations in PVYW ([2013] HCA 41 at [61], (2013) 250 CLR at 268) that Hatzimanolis identified “two circumstances” to “better explain the connection that an injury suffered by an employee in certain circumstances has to the employment”, those “two circumstances” being:

… where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage; or where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be. …

The present case, so submitted Senior Counsel for Ms Dring, was one where her injury had been suffered at a place booked by her employer. That was the second of the “two circumstances”. And where a case fell within that scenario, according to their Honours in PVYW:

…. An injury sustained in these circumstances may be regarded as sustained in the course of the employee’s employment. …

29    The initial difficulty with this submission, with respect, is that it impermissibly seeks to substitute for the words of s 14 of the Safety, Rehabilitation and Compensation Act, the words employed by their Honours in PVYW. Although the analysis of the phrase “arising out of or in the course of employment” by their Honours unquestionably assists and informs the manner in which s 14 is to be interpreted and applied, it forever remains the terms of the legislation which prevail. In Hatzimanolis (and by reference to Dixon CJ in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556), Mason CJ, Deane, Dawson and McHugh JJ endorsed the observation that it is “perhaps unwise to substitute any expression as an equivalent for the well-known words ‘in the course of’ which had a long history in the law before they were taken up by the English Workmen’s Compensation Act 1897”: (1992) 173 CLR at 479.

30    Senior Counsel for Ms Dring, it would be expected, would deny with some justification that his submissions were put in such crude terms. But it is nevertheless useful in any case of statutory construction to go back to the terms of the applicable legislation rather than a judicial exposition or explanation as to what those terms mean.

31    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 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”. Such a proposition is denied, in particular, by the observations of the High Court.

32    The observations of that Court in PVYW ([2013] HCA 41 at [61], (2013) 250 CLR at 268), as to there being “two circumstances” in which an injury may be suffered, were but a means of assisting in the interpretation and application of the phrase “arising out of, or in the course of, the employee’s employment”. To make para [61] of their Honours’ reasoning the sole focus of attention is to ignore their Honours’ concerns expressed elsewhere at any conclusion which would necessarily expose an employer to liability for any injury suffered “at a place” chosen by the employer. Such a conclusion, so said their Honours, would make the employer “the insurer for the employee during the time that the employee [was] at the place”: [2013] HCA 41 at [9], (2013) 250 CLR at 254. “These”, according to the High Court, would be “odd results”. It was for that reason that that Court repeatedly emphasised the need for there to be “a connection between the injury, the circumstances in which it occurred and the employment itself”: [2013] HCA 41 at [36], (2013) 250 CLR at 261. And the need to establish that “connection” was not in all cases satisfied by the employee suffering the injury at “the place” chosen by the employer. Nothing said by the High Court in PVYW can be taken as any departure by their Honours from their previous reliance on and application of Hatzimanolis, including the reasoning in the latter case that an injury suffered at a place chosen by the employer “is more readily perceived as being within the current conception of the course of employment” (Hatzimanolis (1992) 173 CLR at 483). The “source” of an employer’s liability remains the “inducement or encouragement” to the employee “to be present at a particular place or to engage in a particular activity”: PVYW [2013] HCA 41 at [35], (2013) 250 CLR at 261. But “the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do”: [2013] HCA 41 at [35], (2013) 250 CLR at 261. French CJ, Hayne, Crennan and Kiefel JJ in PVYW could not have more clearly rejected any proposition that an employer was the “insurer” where an employee suffers an injury at a place chosen by the employer when their Honours observed (at 264) that:

[45]    … Liability in those circumstances is justifiable. Liability for everything that occurs whilst the employee is present at that place is not.

Nor would such a proposition sit comfortably with the endorsement in PVYW of the observations of Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 that if an employee “‘so far deviates’ on a purpose of his own, that purpose cannot be considered to be in the course of employment”: PVYW [2013] HCA 41 at [57], (2013) 250 CLR at 267. It would also not sit comfortably with the earlier observations in Hatzimanolis ((1992) 173 CLR at 482) that:

…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 authorised, 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.

33    The endorsement by the Full Court in Westrupp ([2015] FCAFC 173 at [53], (2015) 238 FCR at 365) of the observations in PVYW ([2013] HCA 41 at [61], (2013) 250 CLR at 268) as to there being “two streams of analysis” takes the argument no further. Although those “two streams of analysis” may well assist in the application of the statutory phrase to the facts, no conclusion is open that either PVYW or Westrupp support any proposition that an injury suffered at “a place where the employer had induced or encouraged the employee to be” necessarily attracts compensation.

34    The third of the reasons for rejecting the submission advanced on behalf of Ms Dring, albeit a reason which is expressed with some reservation, is that the reasons of the Tribunal, properly construed, recognise the principles established in Hatzimanolis and PVYW and sought to properly apply those principles.

35    A superior Court seeking to review the reasons of an administrative tribunal, it is well recognised, should not approach that task with “an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Although recourse is oft had to these observations by those seeking to deny the existence of error, it is equally well-established that the eyes of a reader “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 295-296 per Marshall, North and Flick JJ. See also: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [91] per Thawley J; Lifestyle Investments 1 Pty Ltd v Commissioner of State Revenue [2020] VSC 397 at [104] per Nichols J.

36    The submissions advanced on behalf of Ms Dring – and, in particular, the reliance placed upon paras [59] and [63] of the Tribunal’s reasons – cannot be summarily dismissed. The Tribunal’s reference (in particular) to there being a “narrowing of the place test increas[ing] the requirement of the employee to demonstrate the injury has been sustained whilst engaged in activity induced or encouraged by the employer” is – to say the least – curious. What was intended to be conveyed by there being a “narrowing” of the test and there being a “requirement of the employee to demonstrate” does not sit comfortably with the reasoning in either Hatzimanolis or PVYW. But what the reasons of the Tribunal do expose is an understanding on its part of the need to address its attention to such matters as (inter alia):

    whether an injury was suffered during a period of time when an employee was required by an employer to be accommodated at a particular place; and

    any “inducement” offered by an employer to an employee “to stay in a particular place or act in a particular way”: [2018] AATA 3149 at [58].

          Those reasons also expose attention being given to such matters as:

    the “place” at which an injury was suffered; and

    the “activities” being undertaken by an employee.

37    Properly construed, those reasons do not expose error. Indeed, albeit contrary to the submission advanced on behalf of Ms Dring, those reasons correctly identify the fact that:

    “mere presence … at a particular place … is not sufficient to find … compensable injury”, together with the reference to PVYW in support of that conclusion ([2018] AATA 3149 at [61]); and

    the injuries suffered by Ms Dring “did not occur merely by reference to a place” ([2018] AATA 3149 at [63]).

38    Rather than exposing error, it is respectfully concluded that the reasons of the Tribunal when construed in their entirety proceed upon a proper understanding of legal principle.

39    The final reason for rejecting the submission advanced on behalf of Ms Dring is that any error committed by the Tribunal would have been an error of fact and not an error giving rise to a “question of law”. Even though different Tribunal members may have reached a different conclusion, once the legal principles have been properly applied any further conclusion is one of fact.

40    Rejected is the submission advanced on behalf of Ms Dring that only one conclusion was open on the facts.

The decision of the primary Judge

41    Although the submissions in the present case, not unsurprisingly, focussed on the decision of the Tribunal, it must also be recalled that the jurisdiction presently being exercised by this Court is the resolution of an appeal from the decision of the primary Judge.

42    Although it may perhaps be the case that his Honour’s reasons may read more in the nature of entertaining an appeal free from of the constraints imposed by s 44 of the Administrative Appeals Tribunal Act to limit the appeal to a “question of law”, it is unquestionably the case that his Honour:

    set out to resolve – and did in fact resolve – the question of law as to whether “the Tribunal correctly applied the statutory expression ‘arising out of, or in the course of, the employee’s employment” ([2020] FCA 699 at [22]); and

    did not commit any error in upholding the conclusion of the Tribunal that “the extent and duration of [Ms Dring’s] personal activity resulted in a broken nexus with her employment” ([2020] FCA 699 at [60]).

CONCLUSIONS

43    The Tribunal properly construed and applied s 14 of the Safety, Rehabilitation and Compensation Act to the facts and circumstances of the case. The primary Judge did not err in reaching the same conclusion.

44    The appeal should be dismissed with costs.

Associate:

Dated:    9 April 2021

REASONS FOR JUDGMENT

RANGIAH J:

45    I agree with the reasons of Flick J and the orders proposed by his Honour. I also agree with the additional observations of Wigney J.

Associate:    

Dated:    9 April 2021

REASONS FOR JUDGMENT

WIGNEY J:

46    I agree with Flick J that the appeal should be dismissed with costs. Subject to the following brief observations, I also agree with his Honour’s reasons. I gratefully adopt his Honour’s summary of the relevant factual background and legal framework and principles.

47    The resolution of this appeal essentially hinges on the question whether, as contended by the appellant, the facts as found by the Tribunal effectively compelled the conclusion that the injury suffered by the appellant arose out of, or in the course of, her employment with the respondent. If the facts as found compelled that conclusion, it would follow that the Tribunal’s conclusion to the contrary was an error of law: see Orr v Cobar Management Pty Ltd (2020) 383 ALR 352; [2020] NSWCCA 220 at [51]-[61] (Bathurst CJ and Bell P, with whom Johnson, Garling and Lonergan JJ agreed); The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 at 138 (Jordan CJ); Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7 (Mason J); Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157 (Glass JA, with whom Samuels JA agreed). It would also follow that the Court had jurisdiction to entertain an appeal on a question of law arising from that circumstance pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

48    If, however, the facts as found were capable of supporting a conclusion that the appellant’s injury did not arise out of, or in the course of, her employment, or that conclusion was at least open on the facts as found, the question whether the Tribunal was correct in arriving at that conclusion would be a question of fact, not law. It would follow that the Court would have had no jurisdiction to intervene on an appeal under s 44 of the AAT Act.

49    The primary judge approached the appeal on the basis that the central question of law raised by the appellant was whether the Tribunal correctly applied the statutory expression “arising out of, or in the course of, the employee’s employment” to the facts as it found them: Dring v Telstra Corporation Limited [2020] FCA 699 (Judgment) at [22]. His Honour resolved that question against the appellant by finding, in effect, that the Tribunal’s finding that the injury did not arise out of, or in the course of, her employment was correct: Judgment at [56]-[60].

50    It was, however, strictly unnecessary for the primary judge to go so far as to determine whether the conclusion that the Tribunal had reached aligned with what his Honour considered to be the correct or preferable conclusion having regard to the factual findings that had been made. It was only necessary to consider whether that conclusion was open to the Tribunal on the facts as found by it. If it was, any challenge to that conclusion would essentially involve a question of fact, not a question of law. The same applies to the resolution of this appeal.

51    I agree with Flick J that the factual findings that were made by the Tribunal did not necessarily compel the conclusion that the appellant’s injury arose out of, or in the course of, her employment with the respondent. The flip side of that finding is that it was open to the Tribunal to find that the appellant’s injury did not arise out of, or in the course of, her employment.

52    The issue was not as simple or straightforward as the appellant would have it. The appellant’s case was essentially that, once it was found that her injury occurred while she was staying at the hotel at which she was required or expected to stay during her work trip, and that the injury was occasioned by a slippery floor at that hotel, it necessarily followed that her injury arose out of, or in the course of, her employment. The problem for the appellant, however, is that the relevant inquiry did not begin and end with the fact that her injury was, at least to a certain extent, referrable to the hotel at which she was staying during the work trip. As the primary judge correctly found, it was also necessary to have regard to the activity that the appellant was engaged in at the time the injury was suffered in order to determine whether the injury was sufficiently connected with her employment: Judgment at [58], referring to Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 at [40] and Westrupp v BIS Industries Ltd (2015) 238 FCR 354; [2015] FCAFC 173 at [54].

53    As the primary judge also correctly pointed out, the “line that separates injuries that are sufficiently connected to employment from those that are not” is not always “easily drawn” and may involve “assessments based upon impression and degree”: Judgment at [60]. This was a case in point.

54    Both the Tribunal and the primary judge considered it relevant that the appellant’s injury occurred at 2.30am after she had been out for a number of hours socialising with a friend. It may well have been an entirely different matter if the appellant’s injury had occurred at 8.30pm in the hotel foyer as the appellant returned to her room after a dinner with work colleagues at the hotel restaurant, or if the injury had occurred in the bathroom in the appellant’s room shortly after such a dinner. It may also be accepted that different decision-makers may have given less significance to the time and particular circumstances in which the appellant’s injury occurred and, as a result, may well have arrived at a different conclusion. That is particularly so given that, according to the Tribunal, there was insufficient evidence to support a finding that the appellant’s fall was the result of her being intoxicated. It is somewhat difficult, in those circumstances, to see why the fact that the appellant’s injury occurred in the early hours of the morning after a night out with a friend was accorded such significance. The fact that different decisions-makers may have arrived at a different conclusion, however, simply demonstrates that the Tribunal’s conclusion was a finding of fact and that the appellant’s challenge to it, in all the circumstances, did not really involve a question of law.

55    The appellant contended, both before the primary judge and on appeal, that certain parts of the Tribunal’s reasons showed that the Tribunal had applied the wrong legal test and misconstrued the principles concerning the application of that test which have been established by the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 and PVYW and by the Full Court in Westrupp. There are, it must be conceded, some passages in the Tribunal’s reasons which are somewhat difficult to reconcile with those principles. That said, I agree with Flick J that, read fairly and without an “eye keenly attuned to the perception of error” (cf Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272), those passages do not demonstrate legal error on the part of the Tribunal. While the passages from the Tribunal’s reasons that were the subject of complaint were perhaps in some respects clumsily worded, they nevertheless demonstrated that the Tribunal was both aware of, and applied, the correct legal principles.

56    Finally, in this Court the appellant relied on a number of grounds of appeal all of which asserted, in one way or another, that the primary judge misconstrued or misapplied the principles in Hatzimanolis, PVYW and Westrupp. It would not be unfair to say, however, that the appellant’s submissions dwelt mainly on the Tribunal’s reasons and conclusion. The grounds of appeal were also similar, in essence, to the grounds of appeal from the Tribunal which had been ventilated before the primary judge.

57    The appellant’s essential complaint was that, like the Tribunal, the primary judge had impermissibly qualified the so-called “place test”; that the employee’s injury occurred and was referrable to the place at which the employer had induced or encouraged the employee to stay during intervals of work. The suggestion appeared to be that the appellant’s case was a “place case”, not an “activity case”; a case where the employee’s injury was said to have been incurred in the course of an activity which had been induced or encouraged by the employer. The appellant’s contention was that, as her case was only a place case, it was impermissible or inappropriate for both the Tribunal and the primary judge to look beyond the place test and consider the circumstances in which the injury occurred, including the activity that was being engaged in at the time at which the injury occurred.

58    The appellant’s contention in that respect has no merit. Nothing said in Hatzimanolis, PVYW or Westrupp supports the proposition that, if the injury to an employee occurred at, and was in some way referrable to, the place at which the employer had induced or encouraged the employee to stay, it necessarily followed that the injury arose out of, or in the course of, the employee’s employment. Nor do those cases suggest that in such a case it is impermissible or inappropriate to enquire further into the circumstances in which the injury occurred, including the activities that the employee may have been engaged in at the time of the injury. Indeed, it was made clear in each of those cases that an employer is not to be held liable for everything that occurs while an employee is present at a place at which the employer had induced or encouraged them to be present: Hatzimanolis at 482 (“an unacceptable extension”); PVYW at [45], [48]; Westrupp at [54].

59    It was also acknowledged in Westrupp (at [53]) that there is “the obvious possibility for overlap on the facts of particular cases”; meaning that, in some cases at least, the injury may have been referrable in some way not only to the place, but also to the activity that was being engaged in at that place at, or around, the time the injury was suffered. The contention implicit in the appellant’s submissions that any given case can only be either a place case, or an activity case, but not both, is not supported by the authorities.

60    It must also be steadily born in mind that the statutory question is whether the injury arose out of, or in the course of, the employee’s employment. The principles espoused in Hatzimanolis PVYW and Westrupp are no doubt intended to guide and assist decision-makers in answering that question, particularly in more difficult cases. Those principles do not, however, supplant or replace the statutory test. Nor should the reasoning and statements of principle in those cases be parsed and construed as if they form part of the relevant statute.

61    This was undoubtedly a difficult case. The facts and circumstances were borderline. A different decision-maker may well have arrived at a conclusion different to the Tribunal as constituted in the appellant’s case. The Tribunal did not, however, err in law in arriving at the conclusion it did. It applied the correct statutory test. The primary judge also did not err in effectively upholding the Tribunal’s conclusion.

Associate:

Dated:    9 April 2021