FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Bowden [2012] FCA 576

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Within 7 days the parties file draft minutes of consent orders in relation to costs or their submissions as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

introduction

1    This matter is an appeal from a decision of the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The applicant, Telstra Corporation Limited, appeals from a decision by the Tribunal that the respondent, Kane Bowden, suffered an aggravation of a pre-existing left shoulder injury which arose out of his employment as a technical specialist with Telstra. The Tribunal found Telstra liable to pay Mr Bowden compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Telstra seeks that the Tribunal’s decision be set aside and be remitted to the Tribunal to be determined according to law.

2    Mr Bowden suffered an injury on 29 July 2009 when he arrived for work early, to find a large wheeled industrial waste bin was blocking his access to the Telstra supplied car parking space that he used. The car parking space was in a car park in the basement of the building in which he worked for Telstra. While trying to move the waste bin from the car parking space he seriously aggravated a long-standing left shoulder injury.

3    Mr Bowden claimed workers compensation for his injury pursuant to the Act. His claim was rejected by Telstra and he appealed to the Tribunal.

The Tribunal decision

4    On 13 May 2011 the Tribunal found, after hearing medical evidence, that on 29 July 2009 Mr Bowden suffered an aggravation of his pre-existing shoulder injury when he pushed the industrial waste bin. It then fell to be determined whether the injury fell within s 5A(1)(c) as an aggravation of a pre-existing injury that “arose out of or in the course of that employment”.

5    The Tribunal correctly considered that, for the injury to have arisen out of employment, a sufficient causal connection must exist between the injury suffered by Mr Bowden and his employment. On the facts found by it, the Tribunal determined that there was such a connection and that the injury arose out of his employment with Telstra.

6    Having decided that Mr Bowden’s injury arose out of his employment, the Tribunal considered it unnecessary to also decide whether the injury arose in the course of his employment.

The appeal

7    Telstra now appeals to this Court. At the centre of the appeal is the question as to the test for causal connection required if an injury is to arise out of employment within the meaning of the Act and ground an entitlement to workers compensation.

8    The Tribunal’s findings as to the circumstances of the injury, and its decision as to Mr Bowden’s total incapacity for work as a result, are not challenged.

9    Telstra argues that the Tribunal was required to consider whether moving the waste bin was something that Mr Bowden was required or expected to do to carry out the actual duties of his employment. It relies on a passage in Roncevich v Repatriation Commission (2005) 222 CLR 115 (“Roncevich”) for this contention.

10    I do not accept that the High Court intended that the test expressed in Roncevich be as strict or absolute in its application as Telstra contends. A close consideration of Roncevich confirms that the test described informs rather than excludes a broad consideration of the causal connection required by the words “arising out of employment”. A review of the cases shows that the appellate courts have long recognised that a sufficient causal connection between injury and employment may be found in circumstances where no strict or absolute requirement is imposed that the injury be suffered when the employee is doing something that he was required or expected to do to carry out his duties.

11    For the reasons set out I dismiss the appeal.

The Facts

12    Mr Bowden’s left shoulder injury is long term, having first occurred in 1995 while he was employed in the Australian Army. The injury led to his discharge from the army on medical grounds in September 2007. The following month he commenced more apparently sedentary employment with Telstra as a technical specialist. He worked at premises leased by Telstra at 234 St Kilda Road, Melbourne.

13    About two months after he commenced employment, Mr Bowden’s partner, Ms Ayris, who is also employed by Telstra but as a Team Manager, was transferred to the same premises. Telstra allocated exclusive use of a car parking space in the basement car park of the St Kilda Road premises to Ms Ayris and she was provided with a car park access pass. There was an agreement between Ms Ayris and Telstra in relation to the car space which entitled her to permit Mr Bowden to park in that space, even if he was not accompanying Ms Ayris. Ms Ayris agreed to Mr Bowden using the car parking space including when she did not accompany him and she provided him with the car park access pass to do so.

14    Mr Bowden and Ms Ayris usually travelled to work together in Ms Ayris’ vehicle and he usually drove. To enter the car park at the premises Mr Bowden was required to use Ms Ayris’ car park access pass. He did this when driving Ms Ayris and also when entering the car park unaccompanied by her. Having parked the car Mr Bowden would then take the lift to the third floor of the building where his work station was located.

15    There was a car parking space license agreement in place between Telstra and the building owner. The building owner granted Telstra and those authorised by Telstra the use of the designated space. Under this agreement it was for the building owner to keep and maintain in “reasonable condition the surface and markings of each space and the access to such space…”

16    On 29 July 2009 Mr Bowden drove Ms Ayris’ vehicle to work at Telstra’s St Kilda Road premises unaccompanied by Ms Ayris. He arrived at 6.45 am. His starting time was 7.00 am.

17    Mr Bowden entered the car park and as he approached the parking space allocated for Ms Ayris’ use he saw that it was occupied by a large wheeled industrial waste bin. He got out of the car, checked the waste bin to see that it was empty, and then tried to push the waste bin out of the car space. As he pushed it the bin swerved away from his intended direction and he tried to redirect it. He felt a sudden and severe left shoulder pain.

18    The Tribunal found that:

(a)    Mr Bowden was entitled to park Ms Ayris’ vehicle in the parking space occupied by the bin;

(b)    as the bin was occupying a parking space let to Telstra, it, or someone on its behalf, was entitled to remove the bin from the area it occupied; and

(c)    at the time he was injured Mr Bowden was moving the bin to enable him to park the vehicle he was driving for the purpose of attending to perform the duties of his employment.

19    Save for a short return to work Mr Bowden has been unfit for work since the incident as a result of the injury.

Relevant Legislation

20    Telstra is a licensed corporation pursuant to s 4(10A) of the Act and its employees therefore fall within the scope of the Act.

21    Section 4 provides:

place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.

22    Section 14(1) of the Act provides:

(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.

It is common ground that, when read with s 4(10A), this subsection renders Telstra liable to pay compensation in respect of an injury where, amongst other consequences, incapacity for work is caused.

23    Section 5A(1) defines “injury” to mean, amongst other things:

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

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.

24    Subsection 5A(1)(c) provides for two ways in which the aggravation of a pre-existing condition can amount to an “injury” for which compensation is payable under s 14(1) of the Act. The injury must either be one that arose “out of” employment or “in the course of” employment.

25    Until 2007, the Act also contained provisions that extended the meaning of “employment” by deeming it to cover journeys between the employee’s residence and usual place of work. In 2007 these “journey” provisions were repealed and s 6(1)(b) of the Act in its current form was enacted: see Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). Following the amendment, the effect of subss 6(1)(d) and 6(1C) of the Act is that an injury suffered on a journey to or from work is not to be treated, by reason of that travel, as an injury that arose out of or in the course of employment.

26    Importantly, while the Act no longer deems employment to include journeys to or from work, s 6(1) does not operate to reduce the scope of “injury” in s 5A(1). This is so because s 5A(1) provides:

Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of or in the course of his or her employment the injury shall be so treated if it was sustained:

…

It is common ground between the parties that if the injury suffered by Mr Bowden arose out of his employment as contemplated by s 5A(1) then Telstra is liable to pay compensation.

the Questions of Law

27    Following an amendment to its Notice of Appeal in the hearing, Telstra’s appeal raises three questions of law as follows:

1.1    In considering whether an employee’s injury has arisen out of the employee’s employment within s 5A(1) of [the Act], is the Tribunal required, as the decision maker for the purposes of [the Act], to consider…whether the event out of which the injury is said to have arisen, was something that the employee was required or expected to do to carry out the actual duties of the employee’s employment? – Question 1

1.2    In finding that there was a sufficient causal connection between Mr Bowden’s injury, sustained on 29 July 2009, and his employment by Telstra, did the Tribunal…fail to consider whether the event, out of which Mr Bowden’s injury was found to have arisen, was something that Mr Bowden was required or expected to do to carry out the actual duties of his employment…and thereby fail to discharge its review jurisdiction? – Question 2

1.3    In the absence of any evidence that…moving a bin from a car space that Mr Bowden intended to occupy was something that Mr Bowden was required or expected to do to carry out the actual duties of his employment…was it open to the Tribunal to find that there was a sufficient causal connection between Mr Bowden’s injuries sustained on 29 July 2009 and his employment by Telstra? – Question 3

28    Telstra’s three questions are all closely related and all revolve around the same issue. At the centre of Telstra’s case is its contention in relation to Question 1 that, in deciding whether Mr Bowden’s injury had a sufficient causal connection to his employment with Telstra so as to arise out of that employment, the Tribunal was required to consider whether moving the waste bin was something that Mr Bowden was required or expected to do to carry out the actual duties of his employment (“ the required or expected duties test’).

29    On the basis that this is the test for causal connection, Telstra contends in relation to Question 2 that the Tribunal failed to consider and apply the required or expected duties test.

30    In relation to Question 3, Telstra submits it was not open to the Tribunal to make the finding that there was a sufficient casual connection between the injury and employment in the absence of evidence that moving the waste bin was something that Mr Bowden was required or expected to do to carry out the actual duties of his employment.

31    The Tribunal’s decision only dealt with the “arising out of” employment limb of subs 5A(1)(c) and no question of law is raised regarding the “course of employment” limb of the test.

consideration

Question 1 - The test as to whether an injury arises out of employment

32    The words “arising out of employment” in subs 5A(1)(c) have their origin as part of the phrase “injury by accident arising out of and in the course of employment” in early workers’ compensation legislation in England and Australia. This phrase imposed two conditions before an injury could be compensable under the legislation. Because of the double condition the old authorities require both a temporal connection to employment through the words “in the course of” employment, and a causal connection through the words “arising out of” employment: see for example Dover Navigation Co Ltd v Isabella Craig [1940] AC 190 (“Dover Navigation”) at 199 per Lord Wright.

33    The conjunctive “and” was removed and replaced by the disjunctive “or” in an amendment in 1948 to the Commonwealth Employees Compensation Act 1930 (Cth) (see the Commonwealth Employees’ Compensation Act 1948 – No 61 of 1948) which is the predecessor to the Act in this case. Since this amendment, for an injury to be compensable it has only been necessary for an employee to establish either that the injury arose out of employment or that it arose in the course of employment.

34    Although only the “arising out of” employment limb of the double condition test is directly relevant in this case, the old authorities on the double condition test remain useful for the light they throw on the tests needed to meet the “arising out of” limb considered on its own. They are also useful in the guidance they provide as to the meaning of “employment” in the phrase “arising out of employment”.

35    That the phrase “arising out of employment” requires a causal connection between the injury and employment is common ground.

36    It is important to remember that the test of causation is one of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. In Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) noted:

… causation in tort does not differ from causation under the workers compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.

The judgment of Mason JA was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236.

37    In a passage approved by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 (“Law”) per Aickin J at 647-648, with whom Gibbs, Stephen and Mason JJ agreed, the Full Court in Repatriation Commission v Law (1980) 47 FLR 57 said at 68:

It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.

…

The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.

What is required for an injury to arise out of employment is a causal connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous.

38    It is also important to remember that it is well settled that the purpose of the Act is remedial and is intended to give rights to employees. The appellate courts have repeatedly taken an approach to the provisions of the legislation which is generous to employees.

39    Consistently with this, the authorities are clear that employment is not to be narrowly construed. “Employment” when used in the statutory definition of injury covers things belonging to or arising out of it: St Helens Colliery v Hewitson [1924] AC 59 at 71 per Lord Atkinson. In an often repeated statement, in Thom v Sinclair 1917 AC 127 (“Thom”) at 142 Lord Shaw noted that:

The expression in my opinion, 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 within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute “arising out of employment” apply.

In Kavanagh v The Commonwealth (1960) 103 CLR 547 (“Kavanagh”), Dixon CJ noted at 556 that the words require “a causal connection between the employment or its incidents”.

Locality cases

40    Telstra contends that in deciding whether Mr Bowden’s injury had a sufficient causal connection to his employment with Telstra, the Tribunal was required to consider whether moving the waste bin was something that Mr Bowden was required or expected to do to carry out the actual duties of his employment. However, the authorities are replete with examples where the appellate courts have found a sufficient causal connection between injury and employment without applying the required or expected duties test as strictly as Telstra contends.

41    For convenience I will group some of these cases as “locality cases”. However, to treat them as a special category is wrong as they are no more than the application of the broad words “arising out of employment” to the particular facts of the cases.

42    In Thom a worker suffered injury when an unstable brick wall on land which was adjoining to the employer’s premises collapsed onto a shed in which she was working. The force which brought the wall down was unconnected with the worker’s employment, and the shed itself was in good order. The injury was held by the House of Lords per Lords Haldane, Kinnear, Shaw and Parmoor to arise out of employment. Lord Haldane said at 135:

Has the accident arisen because the claimant was employed in the particular spot on which the roof fell? If so, the accident has arisen out of the employment, and there is no necessity to go back in the search for causes to anything more remote than the immediate event, the mere fall of the roof, and there need be no other connection between what happened and the nature of the work in which the injured person was engaged.

43    His Lordship considered that if an obligation of employment brought an employee to a particular place where the risk of injury arose then an injury suffered was one arising out of employment: Thom at 134. As noted above at [40] Lord Shaw expressed a similar view.

44    In Upton v Great Central Railway Co [1924] AC 302 at 306, 308 (“Upton”) Lord Haldane explained that it will suffice if the accident arises out of circumstances that the employee has had to encounter because it is within the scope of his employment to do so. His Lordship’s remarks in both cases regarding the test for injury arising out employment have been cited with approval in many Australian cases. See: Pearson v The Freemantle Harbour Trust (1929) 42 CLR 320 at 330 in which Knox CJ, Rich and Dixon JJ applied Upton at 306; Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504 (“Australian Woollen Mills”) at 512 per Gavan Duffy CJ, Rich, Evatt and McTiernan JJ citing Upton at 308 and at 518 per Starke J citing Upton at 307 and 308; Goward v The Commonwealth (1957) 97 CLR 355 at 364 per Dixon CJ, Williams, Webb and Kitto JJ, citing Upton at 306 and 308; Local Government Association (City of Salisbury) v May (1996) 67 SASR 353 at 356 to 357 where Duggan J (with whom Cox and Matheson JJ agreed) followed the High Court’s approval of Upton in Goward. In Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 (“Zlateska”) at [50] to [51] Eames JA (delivering joint judgment with Maxwel ACJ and Redlich JA) cited Thom at 134 with approval.

45    Similarly, in 1929 in Lawrence v George Matthews (1924), Ltd [1929] 1 KB 1 at 19 Russell LJ held that:

…sufficient causal relation or causal connection between the accident and the employment is established if the man's employment brought him to the particular spot where the accident occurred, and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, then the accident “arises out of” the employment, even though the risk which caused the accident was neither necessarily incident to the performance of the man's work, nor one to which he was abnormally subjected.

It is of significance that Lord Justice Russell held that it is not necessary that the risk which caused the accident giving rise to injury is incident to the performance of the employee’s work.

46    The approach taken by Lord Justice Russell was approved in Stewart v Metropolitan Water, Sewerage and Drainage Board (1932) 48 CLR 216 (“Stewart”) per Gavan Duffy CJ, Evatt and McTiernan JJ at 224, and by Dixon J as he then was at 232. In this case a supervisor was killed when a kerosene stove exploded. The lunch break had not yet started and the team of gangers to be supervised by him were still working some 40 metres away. Despite this, the supervisor was sitting and watching one ganger trying to prime the kerosene stove so as to boil a billy. The supervisor’s death was held to arise out of his employment.

47    The majority stated at 224 to 225:

We think that some confusion has been caused by a misunderstanding of Lord Justice Russell's phrase “if the man's employment brought him to the particular spot.” This cannot mean that there has to exist any special duty to be at the particular place of the accident. In Lawrence v George Matthews (1924) Ltd the commercial traveller was not bound to be at the spot where the tree fell, any more than the collector in McNeice’s Case was bound to be at the spot where he was kicked on the knee by a passing horse. The condition is satisfied if the worker, whilst in the course of his employment, may properly come and does come to the point of danger. It is there that his “employment brought him.”

…

On this question of whether the accident arose “out of” [the worker’s] employment, the Supreme Court laid stress upon the absence of any duties on [the worker’s] part “associated with” the stove. But this is as irrelevant as the absence of any duty by the commercial traveller in relation to the tree which was struck by lightning (Lawrence’s Case), or of the salesman in relation to the horse which kicked him (McNeice’s Case), or of the railway guard to the windows or doors of the carriage, out of which he fell whilst “in the course of” his employment, but not in the course of any particular work or duty to the employer (Simpson’s Case).

48    Stewart confirms that there is a sufficient causal connection for an injury to arise out of employment if the injury occurred when a worker’s employment brought him to a particular locality where the danger arose. The majority imposed no requirement such that the worker be taken to that locality by the actual duties required or expected of him, or that the event giving rise to the accident was something that the employee was required to do to carry out the active duties of his employment. Nor did the Court use the expression “special” in relation to the danger at the locality.

49    Although the Tribunal does not refer to these cases it should not be thought that the facts in Mr Bowden’s case are far removed from the facts underlying them. Mr Bowden argues that the nature, conditions, obligations and incidents of his employment brought him to the car parking space where he suffered injury and that the injury therefore arose out of his employment.

50    In Australian Woollen Mills the connection to employment was less clear again. Gavan Duffy CJ, Rich, Dixon, Evatt, McTiernan and Starke JJ found that an injury suffered by an employee when he fell at work because of a diabetic condition unrelated to employment, and as a result hitting his head upon a guard rail, was one arising out of employment. In relation to the test Starke J noted at 517 to 518:

…the following propositions have, I think, been established: -

1.    The expression “arising out of” imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do - out of his service [Citations omitted].

…

3.    An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment [Citations omitted].

These propositions appear to me decisive of this case in favour of the worker. The risk or hazard of falling upon the rail guard was one which he encountered in the course of his work, and was associated with his work, and the injury which resulted from that risk therefore arose out of his employment, and, admittedly, in the course of his employment.

51    Brooker v Thomas Borthwick and Sons (Australasia) Ltd [1933] AC 669 related to four workers who were amongst many hundreds killed or injured during an earthquake in New Zealand. The injuries or deaths of three of the four workers occurred when they were struck by falling debris, and of the fourth worker when he fell down a steep incline. The cause of the injuries and deaths was a natural force unconnected with employment, and everyone within a large geographical area was exposed to a similar risk of danger. The Judicial Committee per Lords Atkin, Tomlin, Macmillan, Wright and Lowndes found that the injuries and deaths arose out of employment. Lord Atkin delivered the judgment of the House and at 676 to 677, referring with approval to Lord Haldane’s statement in Thom, his Lordship stated:

The principle which emerges seems to be clear. The accident must be connected with the employment: must arise ‘out of it’.

…

This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further needs to be considered.

52    In O’Brien v Commonwealth (1967) 117 CLR 66 (“O’Brien”) a worker suffered burns well after working hours, in fact after having his evening meal and whilst preparing a hot bath prior to going to bed. The injury occurred when he was getting hot water from a copper using a bucket and he spilled water onto himself. The worker lived at a work camp provided by the employer but he was able if he chose to board in a nearby town. The employer provided all equipment, including the copper and bucket. The Court held, per McTiernan, Kitto and Taylor JJ that the injury arose out of the employment.

53    The employer had argued that the event occurred outside the hours of labour and the worker was “engaged at the time in an activity of benefit only to himself and in his own time”. This is to similar effect as Telstra’s submission in the present case that Mr Bowden had not commenced work when he suffered injury and was not engaged in duties required or expected of him to perform the duties of employment. It is significant that the majority of Kitto and Taylor JJ did not adopt this approach. Taylor J (with whom Kitto J agreed) held at 77:

…it seems to me that if, in availing himself of the facilities provided he was exposed to some risk - resulting in an injury by accident - which was additional to or different from those which in normal circumstances he might be expected to encounter, the conclusion is inescapable that, at the least, his injury was caused by accident arising out of his employment. In such a case there is “a sufficiently proximate causal connexion between the employment and the accident to satisfy the condition expressed by the words ‘arising out of’” (Henderson v. Commissioner of Railways (W.A.) (1937) 58 CLR, at 293).

Special danger

54    Dealing quickly with the relevance of the risk of exposure to “special danger”, I note that the Tribunal does not appear to have considered whether Mr Bowden was exposed to any special risk of injury and it made no finding in that regard. In my opinion the circumstances of this case did not call for such a finding. The unremarkable factual circumstances and the clear link between injury and with employment in the present case mean that the requirement to establish a “special danger” is not part of the test of causal connection that Mr Bowden is required to meet in this case.

55    The Victorian Court of Appeal held in Zlateska per Maxwell ACJ, Eames and Redlich JJ at [61], that:

…the “special risk” or “special exposure” requirement has no application at all to the general run of workers’ compensation cases. Its application is to be confined to “factually exceptional” circumstances, as illustrated by Lord Atkin’s example of a lightning strike. In particular, this requirement has no application to a case such as the present, where it is contended that the worker suffered injury which directly arose out of an incident in her employment.

56    In Thom at 134 Lord Haldane expressly rejected the contention that the employee had to prove that the nature of the employment exposed her to “a peculiar danger”. The NSW Court of Appeal in Nunan v Cockatoo Island Docks and Engineering Co Limited (1941) 41 SR (NSW) 119 (“Nunan”) at 124 to 125 rejected any general requirement that the employment must expose the worker to some special risk of injury for it to arise out of employment, stating that whether this was necessary depends on the particular circumstances of a case.

Entry and exit from employment cases

57    This appeal does not relate to whether the injury suffered by Mr Bowden arose in the course of his employment. The Tribunal considered it unnecessary to determine that issue. I note though that the concept of “employment” is common to both the test of whether an injury “arises out of” or “arises in the course of” that employment. While the test under each limb is different, the word “employment” must have the same meaning in both tests. It does not relate to just the performance of duties and includes things belonging to or arising from it including its nature, conditions, obligations and incidents.

58    For convenience I will describe another group of cases, which deal with injuries suffered when entering into or exiting from the employer’s premises, as “entry and exit cases”. I again note that these cases do not represent a special category, representing no more than the application of the words “arising out of employment” to the particular facts of the cases. In these cases the courts have not applied any test akin to the required or expected duties test.

59    These cases establish that injury suffered by an employee who had left the public highway and was in passage into or exiting from the place of work, where the employee had leave to pass for that purpose and did so using a permitted method of access into or egress, may be sufficiently causally connected to employment so as to “arise out of” it.

60    For example, in Weaver v Tredegar Iron Co Limited [1940] AC 955 (“Weaver”) a miner employed at a colliery suffered injury when caught up in a press of fellow employees on a railway platform trying to board a train. The worker’s shift at the mine had finished, he had left the colliery, and he was on the railway platform waiting to be taken home by the train. The pit abutted the railway line and platform. The line and platform were managed and controlled by a railway company, but the platform was for use only by employees of the colliery and was accessible only from the colliery. Workers could travel to or from home to work by any means they chose, but practically all did so by train. The Privy Council, per Lords Atkin, Wright, Romer, and Porter held that the injury arose out of and in the course of employment. Whilst the judgements primarily relate to the application of the “course of employment” test, the worker was found to have met both limbs of the double condition test.

61    Lord Atkin went through the various attempts to formulate a universal test as to “course of employment” noting at 966:

There can be no doubt the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the down tools signal is given, or when the actual workshop where he is working is left. In other words the employment may run on its course by its own momentum beyond the actual stopping place. There may be some reasonable extension in both time and space…

His Lordship then referred with approval to a series of cases which illustrate the breadth of “employment”: Stewart & Son (1912) Ltd v Longhurst [1917] AC 249 (“Stewart & Son”); Webber v Wansborough Paper Co [1915] AC 51 (“Webber”); and Northumbrian Shipping Co Ltd v McCullum (1932) 48 TLR 568 (“Northumbrian Shipping”).

62    Importantly, his Lordship held at 972 that the injury was in the course of employment because “the duty to leave the employment in a permitted manner had not been completed.” There was no finding that the event giving rise to the injury was something which the worker was required or expected to do to carry out the actual duties of his employment. He was just endeavouring to go home.

63    Lord Romer held at 983 that:

…it must, in my opinion, be taken to have been settled by the authority of this House that, after a workman has finished his day's work and starts out on his way home, his employment continues while he is traversing the premises on which he has been working and any private means of access thereto which he is only entitled to use by reason of his status as a workman, but that…his employment ceases when he reaches a place to which the public have a right of access, such as the public street. From that moment, he loses his identity as a workman, and becomes one of the general public. A similar principle, of course, applies to a workman on his way to work.

64    At 984 Lord Romer quoted with approval a statement by Lord Macmillan in Northumbrian Shipping at 572 (with which the other Lords in that case concurred) as follows:

It has been recognised time and again that the sphere of a workman’s employment is not necessarily limited to the actual place where he does his work. If in going to or coming from his work he has to use an access which is part of his employer’s premises or which he is only entitled to traverse because he is going to or coming from his work, he is held to be on his master’s business while he is using that access.

Lord Atkin at 968 approved a similar passage by Lord Macmillan from Northumbrian Shipping.

65    In Stewart & Son a carpenter employed in repairing a barge lying in dock, left the barge after finishing his day’s work, and while walking along the quay fell off and drowned. The dock was private property but the employer had permission for its workers to pass through the dock. The death was unanimously held to arise out of and in the course of employment. Lord Finlay LC at 253 held:

Actual ownership or control by the employer of the spot where the accident occurred is not essential. The workman comes there on his way to and from his work, and he may be regarded as in the course of his employment while passing through the dock or other open space to and from the spot where his work actually lies. Such passage is within the contemplation of both parties to the contract as necessarily incidental to it.

Lord Dunedin at 257 quoted with approval the words of Pickford LJ in the Court of Appeal as follows:

The workman in this case in order to get to the actual place of work had to enter and leave premises on which he had no right to be and no reason for being, except by the conditions of his employment, and in crossing them to encounter dangers which he would not have encountered but for that employment.

(Emphasis added)

Clearly the deceased was not performing any actual employment duties at the time he fell from the quay.

66    In Webber the worker was a seaman. Having finished work on the ship for the day and going off duty, he passed from the deck to the wharf by a plank which rested on an iron ladder attached to the wall of the quay. While climbing the ladder he fell and was injured. The injury was found to arise out of and in the course of employment. At 55 Lord Haldane quoted with approval the following passage of Buckley LJ in Cook v Owners of S.S. Montreal (1913) 6 B.W.C.C. 220 (Lord Haldane’s remarks later quoted with approval by Lord Atkins in Weaver at 967):

…it is part of the duty of the master to afford the workman when he is dismissed reasonable facilities for leaving the place of employment, and that if the servant is injured whilst availing himself of those facilities the master may be liable.

67    Telstra argues that the circumstances in Weaver are quite different from those in the present case. In my view, the similarity between the facts in Weaver and other “entry and exit cases” and the facts in Mr Bowden’s case are demonstrated at [97] and [98] below. I do not accept that such factual differences as exist are of any significance to the question as to whether his injury arises out of employment.

Other examples of broad application of “arising out of” test

68    Other cases, which I have not sought to group, also show the broad operation of the “arising out of employment” test.

69    Nunan is one such example as in this case an employee working at cleaning paintbrushes suffered an injury when assaulted by a fellow employee. He had inadvertently splashed paint onto some painting that the fellow employee had undertaken and ignored a request by the fellow employee to clean his paint brushes elsewhere. The NSW Court of Appeal per Jordan CJ and Roper J, with Nicholas CJ in Eq agreeing held that the injury arose out of employment. The Court, applying the double condition then in the legislation, put the test broadly, stating at 124:

…if it appears (1) that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury, and also (2) that the injury was sustained whilst he was doing the job which he was employed to do or something incidental to it, he is prima facie entitled to compensation…

The decision was approved in a more recent decision of the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 (“Badawi”) at [73] per Allsopp P, Beazley, and McColl JJA (with Handley AJA dissenting but not in relation to the relevant test).

70    In South Maitland Railways Pty Ltd v James (1943) 67 CLR 496 (“South Maitland Railways”) a worker was killed when he was shot by a fellow employee in a discussion about work during working hours. The deceased sought out his fellow employee to confront him about statements that person had made about his work, his character and his relationship with other employees. The majority of Latham CJ, Rich and Williams JJ (Starke J dissenting as to the course to be followed but not as to the test for causal connection) found that the death arose out of and in the course of employment.

71    Importantly, no limitation was imposed by the Court such that the event giving rise to the death was required to arise from something which the employee was required or expected to do to carry out his actual duties. Starke J held to the contrary, remarking at 503 to 504 that:

It is clear enough on the evidence that the injury to the worker did not occur whilst he was doing anything that was part of the work he was engaged to do by his employer…and though the worker’s act in seeking out [his ultimate attacker] was not an act the worker was employed to do, still it was an act incident to his employment or not so far removed from the employment contemplated by the employer and the worker as to exclude it from the course of employment.

72    Another example, in which no test like the required or expected duties test was applied, is the decision of the NSW Court of Appeal in Tarry v Warringah Shire Council [1974] WCR 1 (“Tarry”). In this case following a disagreement about the rostering of work a foreman and another employee left the employer’s premises to have a fight. The foreman had a heart attack in the fight and died. His widow made a claim for workers compensation. The Court of Appeal per Hutley, Glass and Samuels JJA held that the injury arose out of employment. Hutley JA remarked at 6:

…it is quite clear on the evidence that the injury from which the deceased died arose out of his employment. It arose out of an altercation between two employees of the Warringah Shire Council about a matter which concerns their respective authorities and duties; it arose in a work situation. It does not follow that the injury did not arise out of the employment because in the course of what he was doing the deceased was doing acts which were not in accordance with his duties as a foreman.

(Emphasis added)

Hutley JA endorsed the principles in South Maitland Railways; Weston v Great Boulder Gold Mines Ltd (1965) 112 CLR 30; and Kavanagh. Gibson J and Glass JA endorsed the statements of principle in Nunan.

The decision in Roncevich

73    Roncevich relates to an injury suffered outside the hours of labour. In this case a Sergeant in the Australian army suffered injury when he fell out of a window in his room at the military barracks. He was intoxicated at the time, having been drinking beer at the Sergeants’ Mess from 4.30 pm until 9 pm at a dinner in honour of a senior army visitor. The soldier then went back to his room to change and iron his army uniform for the following day, and whilst leaning to spit out of the window he fell.

74    The question was whether the injury suffered was a “defence caused injury”. It was such an injury if it “arose out of, or was attributable to, any defence service…of the member.”

75    The soldier claimed workers compensation for the injuries from his fall but his claim was rejected. He appealed to the Administrative Appeals Tribunal. In rejecting his appeal the Tribunal said that it did so because his intoxication was not caused by, nor did it arise out of any task that he was to do as a soldier, nor did it arise out of his defence service or occur in the course of his defence service.

76    The High Court, per McHugh, Gummow, Callinan and Heydon JJ at [22], rejected the Tribunal’s approach. The majority held that in asking itself whether the appellant’s intoxication was caused by, or arose out of a task that the appellant had to do as a soldier, the Tribunal asked the wrong question, and not the question that the Act required it to answer. That question was set out as a broad test, namely:

…whether the injury arose out of, or was attributable to, any defence service of the appellant?

After noting its view that the evidence was capable of supporting a finding that the injury arose out of defence service the Court remitted the matter to the Tribunal.

77    At [23], in seeking to illuminate the content of this broad test for “arising out of defence service”, the majority stated:

…whether an event arises in the course of an activity, or as here, out of “an activity”, depends on such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must, however, be a causal and not merely temporal one.

78    Telstra relies on this passage in Roncevich. The Tribunal also relied on the passage in its decision and both parties accept the passage as good law. However, it is wrong to read and apply this passage as if applying a statute. To apply the test in the passage as absolutely as Telstra seeks to, so as to require that for an injury to arise out of employment, the event giving rise to the injury must be something that the employee was required or expected to do to carry out the actual duties of his employment, misconceives the nature and effect of the High Court’s explanation of the test.

79    First, the words “such matters as” in the passage indicates an open rather than closed description of the things to be taken into account in determining whether an injury arises out of employment.

80    Second, to apply the passage as strictly as Telstra does is to read it as significantly restricting the broad test of causal connection set out in the legislation, in a way which is contrary to many decades of authority. The majority in Roncevich gave no indication that they intended to so limit or overturn these long-standing principles.

81    Third, at [27] their Honours indicated that a broad approach to the sufficiency of any causal connection between injury and employment remains appropriate, by noting that the disjunctive use of the words “arose out of” and “attributable”:

…manifest a legislative intention to give “defence caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of being satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.

82    Fourth, at [24] and [26] their Honours noted four pieces of evidence that they considered capable of supporting a decision that the soldier’s injury had arisen out of his defence service. These were:

(a)    the need for the applicant to return to quarters to prepare his uniform for the next day which the majority considered was capable of being seen as arising out of his defence service;

(b)    that the incident happened on the base and interrupted him ironing his military uniform; and

(c)    that the intoxication happened on the base;

(d)    although there was no formal order by the army, there was an expectation that officers would drink some quantity of alcohol on the occasion of a visit by a distinguished visitor, even perhaps to the point of intoxication short of physical incapacity.

83    While the first three pieces of evidence can be seen to bear on whether there is a causal connection between employment and injury, they have little or nothing to do with whether the event out of which the injury arose was something that the soldier was required or expected to do to carry out his actual duties. The fact that the majority considered this evidence relevant is illustrative that the Court did not propose to limit the test for causal connection in the manner contended by Telstra. In Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1 (“Roberts”) Madgwick J at [55] made a similar observation. His Honour noted that “some of the matters regarded by the High Court in Roncevich as relevant to the ‘arising out of…test’ were not, it would seem, of any notable relevance to a restricted view of causation…”

84    Fifth, I note that since Roncevich the Courts of Appeal of the NSW and Victorian Supreme Courts have considered the meaning of “arising out of” employment but do not refer to Roncevich. It might be expected that these Courts would have done so if Roncevich had significantly restated the law. In Badawi at [72] to [85] the NSW Court of Appeal considered many of the leading authorities, referring with approval to the decisions of the High Court and the Court of Appeal in Nunan, Australian Woollen Mills, Stewart, Kavanagh, Tarry and South Maitland Railways. Their Honours described the meaning of “arising out of employment” as settled and noted that Nunan, with its broad common sense test of causal connection, is recognised as authoritative. In Zlateska at [42] to [64] the Victorian Court of Appeal also reviewed some of the leading authorities on arising out of employment, although mostly in the context of the “special danger” test, citing with approval Thom, Upton, and Brooker. Neither decision suggests that for an injury to arise out of employment the event giving rise to the injury must be something which the employee was required or expected to do to carry out the actual duties of his employment. Nor has the test in Roncevich been narrowly construed by this Court, as Telstra seeks: see Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 at [34] to [37] and [47] to [48]; Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535 at [26] to [29]; Gilkinson v Repatriation Commission [2008] FCA 1441 at [5].

85    The effect of Telstra’s approach to the causal content of the phrase “arising out of” employment is to import a limitation or refinement into the words of s 5A(1) of the Act for which there is no justification. That is not to say that whether the event giving rise to injury is something which the employee is required or expected to do to carry out his actual duties is not a relevant consideration. It plainly is. If the employee suffers the injury in such circumstances it will be easier to determine that the injury arose out of employment. However the application of the test is not to the exclusion of a broad consideration of whether a sufficient causal connection exists for the injury to arise “out of” employment.

Other matters

86    Telstra argues that the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (“Hatzimanolis”) and Roncevich implicitly rejected the principle in Weaver. I do not accept this. I have already set out my view as to the application of Roncevich. In Hatzimanolis a worker employed at Mt Newman in Western Australia suffered injury in a car accident when travelling back from a day trip to see Wittenoom Gorge, whilst on a day off work. He was invited on the day trip by his supervisor who encouraged him to attend, organised the trip and provided the vehicles and the food. The injury was held to arise in the course of employment.

87    In a joint judgement by Mason CJ, Deane, Dawson, and McHugh JJ their Honours explained at 482 that there was a need to reformulate the principles used to determine whether an injury occurring between periods of actual work was within the course of employment. Their Honours did so by stating an “organising principle” at 484:

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.

88    Importantly, in the next sentence the majority paid regard to the broad nature of employment and stated:

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 v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537].

89    First, I note that the test in Hatzimolis relates to injury suffered during intervals or interludes in employment, rather than to injury suffered during entry to employment as in this case. Second, I doubt that the High Court intended that this “organising principle” be as strict in its application as Telstra contends. In PVYW v Comcare (No 2) [2012] FCA 395 at [41] Nicholas J expressed a similar view.

90    Telstra also notes that in Hatzimolis the majority were critical of the use of the words “incidence of service”, and argues from this that the word “employment” when used in the statutory definition of injury does not cover and include “things belonging to and arising out of it”. I do not accept this. As is apparent from their Honour’s view that “regard must always be had to the general nature, terms and circumstances of the employment”, the Court did not reject a broad approach to the meaning of employment. Rather, the Court was acknowledging the difficulty of deciding whether an injury arises in the “course of employment” by reference to whether it is “incident of employment” as to decide this often involves the application of some other test to do so. Such acknowledgements litter the authorities. For example, Dixon J at 294 in Henderson noted the difficulty in the application of whether acts are within the “service to the employer.”

91    The decision in Hatzimolis serves as another example of an expansive view of “employment” given the Court’s finding that an injury suffered on a day off work, on what the employer contended was a private sightseeing trip, was still found to be in the course of employment.

Conclusion regarding Question 1

92    In my view the Tribunal did not apply the wrong test for causal connection of Mr Bowden’s injury with his employment when it determined that his injury arose out of the employment. The question as to whether the event giving rise to injury was something that Mr Bowden was required or expected to do to carry out his actual duties was relevant but does not apply to exclude a broader consideration of whether the injury arises out of employment.

Question 2 – Whether the Tribunal failed to apply the correct test in finding that the injury arose out of employment

93    In relation to Question 2 Telstra contends that in finding a sufficient causal connection between Mr Bowden’s injury and his employment, the Tribunal failed to consider whether moving the waste bin was something that he was required or expected to do to carry out the actual duties of his employment. I consider it clear on a fair reading of the decision that the Tribunal understood and sought to apply the correct test for causal connection.

94    At paragraph 71 of the decision the Tribunal set out the relevant passage from Roncevich in a clear acknowledgment that a relevant consideration was whether the event giving rise to the injury was something which Mr Bowden was required or expected to do to carry out the actual duties of his employment.

95    At paragraph 72 of the decision it set out the relevant passage from Law which describe the required causal relationship as less than “caused by” or “results from” but more than fanciful or tenuous.

96    Importantly, at paragraph 74 the Tribunal refers to the decision by Madgwick J in Roberts at [55] where his Honour held that the test for injury arising out of employment provides that:

…it is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal...

This passage indicates the Tribunal’s awareness that the test expressed in Roncevich, whilst relevant, informs rather than excludes a common sense approach to the sufficiency of any causal connection.

97    At paragraph 77 the Tribunal set out a series of facts which it considered supported its finding of a causal connection such that Mr Bowden’s injury was one arising out of employment. The Tribunal stated at paragraph 77:

The following circumstances have caused me to come to this conclusion:

1)    Mr Bowden was injured while removing the bin from an area which was licensed to his employer for use as a parking space;

2)    Telstra issued policies controlling the use of the parking spaces by its employees;

3)    under the terms of a licence, the building owner was obliged to maintain access to the car space;

4)    as the bin was occupying a parking space let to Telstra, it, or someone on its behalf, was entitled to remove the bin from the area it occupied;

5)    Mr Bowden was entitled to park Ms Ayris’ vehicle in the parking space occupied by the bin;

6)    at the time he was injured Mr Bowden was moving the bin to enable him to park the vehicle he was driving for the purpose of attending to perform the duties of his employment;

7)    at the time he was injured Mr Bowden had the consent of Ms Ayris to use the parking space provided for her use by Telstra.

These circumstances provide a causal connection which is more than tenuous or fanciful.

98    The Tribunal’s findings of fact at paragraph 77 indicate that the Tribunal considered:

(a)    whether Mr Bowden was making his entrance into his place of employment at the time of moving the waste bin;

(b)    whether Mr Bowden’s entrance into his place of employment was relevantly connected to employment, that is, whether he was there for an employment related rather than private purpose;

(c)    whether his means of entry into the building was one of a range of methods permitted by Telstra;

(d)    whether his means of access into the building in which he worked was one not shared with the public at large.

These are all proper considerations by the Tribunal as they tend to show a link between injury and employment accepted as a sufficient causal connection in some of the authorities I have referred to, particularly the “entry and exit” cases.

99    The effect of Mr Bowden’s evidence as accepted by the Tribunal, together with the Tribunal’s findings at paragraph 77, is as follows. Mr Bowden made his entrance into the basement car park of the building in which he worked on the third floor so as to attend to his duties. He had left the public highway or area as he had entered a car park that required he use an access card to enter and/or because he was in a car parking space licensed exclusively to Telstra. He was using a permitted method of access to the building as the Tribunal found that Telstra permitted his use of his partner’s car parking space. The thrust of Mr Bowden’s evidence as to why he moved the bin is straightforward. In any event, the Tribunal found that he did so as to attend to his duties. He moved the bin so as he could park his car and continue his entrance into work.

100    Telstra says that there are significant differences between the facts in Weaver and this case. It points to the fact that the colliery had arranged for a railway company to collect its employees, and the practical compulsion to use the railway siding, whereas Mr Bowden chose to travel to work by car and park in the car park. As Lord Atkin states in Weaver at 968 to 969 this is not a difference of significance, it being well established that a workman only need be using one of the permitted alternative routes into or exiting from the employer’s premises. Lord Atkin refers with approval to the 1934 decision in Foster v Penfold Ltd (1934) 27 B.W.C.C. 240 at 259 where Lord Romer held it to be enough that the worker was leaving the place of work in “any permissible way and in any permissible manner.” Given the finding that Mr Bowden was permitted by Telstra to use Ms Ayris’ car parking space it cannot be argued that his use of this route for entering and exiting the premises precludes the accident from being one arising out of his employment.

101    Telstra also points to the risks in Weaver of being jostled on the railway siding compared to Mr Bowden being in a car park in an office building. This too is of no significance given that on the unexceptional facts of this matter “special danger” is not required.

102    Mr Bowden’s evidence as to the circumstances in which he moved the waste bin was apparently straightforward, and the Tribunal has found that he did so in order to carry out the duties of his employment. I accept Telstra’s contention that this is not a finding that moving the waste bin was something which was required or expected of Mr Bowden in order to perform the actual duties of his employment. However, a fair reading of the decision and the centrality of that issue to the dispute and the facts found indicates that the Tribunal did consider the issue. While no express finding was made and the question may not have been attributed the importance that Telstra would prefer, there is no indication that the Tribunal misapprehended its task or applied the wrong test.

103    At paragraph 79 of the Tribunal’s decision it states:

…even if Mr Bowden’s conduct had been in breach of Telstra’s policies, it would not have followed that his injury did not arise out of his employment. An injury may arise out of employment notwithstanding that the conduct which caused the injury was outside the scope of the employee’s duties. An injury suffered in a fight between two employees has been held to have arisen out of employment.

The footnote to the last sentence of the passage cites the decision of the NSW Court of Appeal in Tarry. Telstra contends that it was cited to answer a question that did not arise – namely, would Mr Bowden’s claim be defeated if his conduct had been in breach of Telstra’a policies. This contention is speculative as the decision does not make that clear. However, the passage does indicate that the Tribunal appreciated the significance of the scope of “employment” in the test for arising out of employment.

Other matters

104    Telstra argues that in relying on the principles in Weaver to contend that the Tribunal did not apply the wrong test, Mr Bowden seeks to resist Telstra’s appeal on grounds other than those on which it is based. I do not accept this. In Weaver the injury suffered was found to arise in the course of and out of employment. Its principles are applicable to both limbs of the definition in subs 5A(1)(c).

105    Mr Bowden contended before the Tribunal that his injury fell under both limbs. It is apparent from the Tribunal’s decision at paragraph 77 as to the facts relevant to that decision, that the principles in the “entry and exit” cases were important to its determination that the injury arose out of employment. It is also clear from paragraph 79 that the Tribunal considered the scope and meaning of “employment” when deciding that the injury “arose out of” it.

Conclusion regarding Question 2

106    Although the Tribunal’s reasoning is not as explicit as is to be preferred, it is apparent that it followed the broad commonsense approach to causation accepted by Madgwick J in Roberts, while having regard to the more specific considerations indicated by Roncevich. I can discern no error of law in the test applied by the Tribunal in determining that Mr Bowden’s injury arose out of his employment with Telstra.

Question 3 – Whether it was open to the Tribunal to determine that Mr Bowden’s injury arose out of employment in the absence of evidence that Mr Bowden was required or expected to move the waste bin to carry out his actual duties?

107    It follows from my decision in relation to Questions 1 and 2 that I consider it was open to the Tribunal to make the finding that Mr Bowden’s injury arose out of his employment. That this finding was open is plain from the application of the test for causal connection to Mr Bowden’s evidence and the findings made by the Tribunal.

108    In particular, it was open to the Tribunal to conclude that the injury arose out of employment because of the facts I have set out at [97] to [98]. Not only was the decision open, the sufficiency of the causal connection is clear from a proper application of the principles in the authorities including Roncevich, Law and Roberts, as referred to by the Tribunal.

Conclusion

109    For these reasons the appeal must fail. I am aware of no reason why costs should not follow the event. The parties should consult and within seven days file draft consent orders as to costs. If there is no consent as to costs I direct the parties to file short submissions as to costs within seven days.

Associate:

Dated:    4 June 2012