FEDERAL COURT OF AUSTRALIA

Dring v Telstra Corporation Limited [2020] FCA 699

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    In the early hours of Thursday, 14 April 2016, the appellant, Ms Dring, slipped and fell on wet tiles in the main foyer area on the sixth floor of the Novotel Hotel in Collins Street, Melbourne. She was staying at the hotel for the purposes of attending a series of information technology workshops conducted by or for the respondent (hereafter, “Telstra”), by which she was then employed in the role of Senior Project Manager. Those workshops were conducted over consecutive days. In the early evening of Wednesday, 13 April 2016—after the workshops on that day had completed—Ms Dring met with a colleague, Ms McKenzie, at the Novotel on Collins Street. They shared a bottle (or a good part of a bottle) of champagne in Ms Dring’s hotel room as they chatted. Later, they had dinner at a well-known Melbourne restaurant, Lucy Liu, where they shared a bottle of white wine. After dinner, they went to a cocktail bar. They returned to the Novotel on Collins Street at approximately 2:30am, whereupon Ms Dring’s accident occurred.

2    As a result of her fall, Ms Dring suffered a contusion to her left hip. On 1 September 2016, she made an application under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (hereafter, the “SRC Act”) for compensation in respect of her injury. Because it was suffered at the hotel at which she was staying for the purposes of work-related travel, she contended—and still contends—that it arose out of, or in the course of, her employment. Telstra rejected that application on 13 October 2016. On 9 November 2016, Ms Dring (via the agency of her solicitors) requested that Telstra reconsider that determination pursuant to s 62 of the SRC Act. That occurred and, on 9 December 2016, Telstra’s initial rejection of Ms Dring’s application was affirmed.

3    On 5 January 2017, Ms Dring applied to the Administrative Appeals Tribunal (hereafter, the “Tribunal”) under s 64 of the SRC Act for a review of Telstra’s 9 December 2016 decision (hereafter, the “Reviewable Decision”). That application was heard and, on 31 August 2018, the Tribunal affirmed the Reviewable Decision. It did not accept that Ms Dring’s injury arose out of, or in the course of, her employment with Telstra.

4    By means of a notice of appeal dated 26 September 2018, Ms Dring now appeals that decision (hereafter, the “Tribunal’s Decision”). Although that notice purports to identify multiple questions of law in respect of which it is said that the Tribunal erred, there is really only one at the core of the appeal: Ms Dring contends that the Tribunal misunderstood the circumstances in which the SRC Act recognises an injury as having arisen out of, or in the course of, employment. For the reasons that follow, I do not accept that it did.

Background

5    Most of the relevant background facts have already been stated. There is nothing about them that is presently controversial.

6    Before the Tribunal, there was a factual contest as to whether or not Ms Dring was intoxicated at the time of her accident. It was not controversial that Ms Dring’s interactions with Ms McKenzie on the night of Wednesday, 13 April 2016 (and early morning of Thursday, 14 April 2016) were of a social, rather than work-related nature. There was evidence to suggest that Ms Dring was intoxicated at the time of her accident (none of which need here be examined). She maintained that she was not and the Tribunal ultimately accepted her evidence. The present appeal proceeds upon that acceptance.

7    There was also, before the Tribunal, conflicting medical evidence as to whether or not the impairment or incapacity that Ms Dring attributes to the injury that she sustained on 14 April 2016 were, instead, functions of some pre-existing pathology. The particulars of that impairment or incapacity were not the subject of exploration in this court. Regardless, evidence led on behalf of Telstra before the Tribunal suggested that the fall that occurred on 14 April 2016 was minor and likely resolved within six to eight weeks of having occurred. Any ongoing impairment or incapacity, so that evidence suggested, was not referable to her employment; rather, it was a function of an underlying condition affecting Ms Dring’s hips. The Tribunal rejected that evidence and concluded, instead, that Ms Dring’s condition (such as it might be) was a consequence of the accident that befell her on 14 April 2016.

8    There is (and, before the Tribunal, was) no dispute that Ms Dring travelled to Melbourne for the purposes of attending workshops organised by her employer. Telstra arranged and paid for her airfares to and from Melbourne, and her accommodation at the Novotel on Collins Street.

9    Similarly, there was no material contest about the circumstances in which Ms Dring’s injury came about. Upon her return to the Novotel on Collins Street at approximately 2:30am on Thursday, 14 April 2016, she and Ms McKenzie caught an elevator to the sixth floor, where the reception and main foyer area was located. In order to get to Ms Dring’s hotel room, it was necessary for them to walk to a second bank of elevators on that floor. Whilst walking between the two lift wells, Ms Dring found herself in urgent need of a bathroom. She visited the public restrooms located in (or near) the main foyer area, access to which was gained via an area of tiled flooring. It appears that whilst Ms Dring was making use of those facilities, that tiled floor area outside of them was mopped. The accident occurred after she emerged.

The legislative scheme

10    Broadly speaking, the SRC Act establishes a framework for the payment of compensation in respect of injuries sustained by employees of the Commonwealth, Commonwealth authorities and “licensed corporation[s]”. Telstra is a “licensed corporation” and, as such, is liable to pay compensation as the SRC Act requires. That compensation assumes various guises, including for costs associated with medical treatment (SRC Act, s 16), for death (SRC Act, div 2 of pt II), for “incapacity” (SRC Act, div 3 of pt II), for “impairment” (SRC Act, div 4 of pt II) and for household and attendant care services (SRC Act, div 5 of pt II). In each case (and subject to minor qualifications not presently relevant), the circumstance that triggers an entitlement to compensation is the sustaining of an “injury”.

11    “[I]njury” is defined by s 5A of the SRC Act, which relevantly provides as follows (underlined emphasis added):

5A Definition of injury

(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.

12    Section 5 of the SRC Act defines “employee”. Relevantly, it includes those who are employed by licensed corporations. It is not in dispute that Ms Dring was an employee for the purposes of the SRC Act.

13    Section 6 of the SRC Act contains a non-exhaustive list of circumstances in which an injury that is sustained by an employee is to be understood as having arisen out of, or in the course of, his or her employment. None of those circumstances is relevant presently.

14    Part II of the SRC Act is entitled “compensation”. Broadly speaking, it identifies the circumstances in which, and the amounts by which, an employee who suffers an “injury” is entitled to be compensated. Notwithstanding that pt II of the SRC Act makes provision for various, independent sources of entitlement and liability, s 14 of the SRC Act identifies, perhaps by way of overview, the circumstances in which compensation is and is not payable. It relevantly provides as follows:

14 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.

…

15    The issue that arises presently does so under s 14 of the SRC Act. Telstra has denied, at a conceptual level, that it is liable to pay compensation to Ms Dring in respect of her injury. Ms Dring challenges that conceptual denial. She seeks—and, before the Tribunal, sought—relief of what is essentially a declaratory nature: in other words, recognition that, contrary to its denial, Telstra is liable to pay compensation in accordance with pt II of the SRC Act in respect of her injury. The particulars of that liability—which, of course, depend upon the particulars of Ms Dring’s present condition—are not presently in focus.

16    The Tribunal’s jurisdiction to hear the application that Ms Dring brought before it is not controversial. This court’s jurisdiction to entertain the present appeal arises by reason of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which relevantly provides as follows:

44 Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)    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.

…

Powers of Federal Court

(4)    The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5)    Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

…

(7)    If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)     the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)     it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)     the extent (if any) to which it is necessary for facts to be found; and

    (ii)     the means by which those facts might be established; and

(iii)     the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)     the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)     whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

The Tribunal’s Decision

17    It is not necessary to devote much analysis in these reasons to the conclusions of the Tribunal. In substance, the Tribunal concluded that Ms Dring’s left hip contusion arose neither out of, nor in the course of, her employment with Telstra. Whether it did so or not was acknowledged as a “vexed question”. With respect—and as the remainder of these reasons will, I should hope with some force, demonstrate—that is something of an understatement.

18    In arriving at its conclusion that Ms Dring’s injury was not one that arose out of, or in the course of, employment, the Tribunal traced through many of the significant authorities that have had occasion to consider that question. At [61] of the Tribunal’s Decision, the Tribunal noted:

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. As the majority of the High Court said in [Comcare v PVYW (2013) 250 CLR 246, 268 [60]];

The principle in Hatzimanolis should nevertheless be understood to have sought, and achieved, a connection or association with employment. For present purposes that understanding is helpful to explain, if it be necessary, that for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely, because an employee is injured whilst engaged in an activity at that place.

19    At [63], the Tribunal concluded that:

…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.

The appeal

20    By her appeal to this court, Ms Dring contends that the Tribunal’s Decision was the product of legal error. She identifies three questions of law in respect of which she submits that the Tribunal erred by concluding that her hip injury was not one that arose out of, or in the course of, her employment with Telstra, namely:

1.    Did the Tribunal fail to apply the correct legal test of liability to pay compensation for an injury that occurred at and by reference to a place where she was accommodated by her employer for the purposes of employment?

2.    Did the Tribunal take an irrelevant consideration into account, that had the employee adopted some alternative course of action, no injury might have occurred?

3.    Did the Tribunal find that the injury was sustained by reference to an activity without evidence as to the nature of the activity and its connection to the injury sustained?

21    As is customary, Ms Dring’s notice of appeal goes on to identify the grounds upon which she alleges that the Tribunal erred in concluding as it did. Three such grounds are identified, one for each of the three questions of law that are said to arise for this court’s consideration:

1.     The Tribunal erred in concluding that the test of liability for compensation in relation to an injury sustained in an overall period of work occurring at and by reference to a place had been “narrowed” such that it could not arise by reference to place alone but included an additional requirement of an activity that was encouraged or induced by the employer.

2.     The Tribunal took an irrelevant consideration into account in suggesting that “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 used, placing her at no risk of falling on a recently cleaned floor” in that it suggested that an alternative, hypothetical course of events might have occurred that would result in no injury.

3.     The Tribunal had no evidence that the social activity engaged in during the hours preceding the fall at the [h]otel reception on leaving the female toilets, had any relevant connection to the injury that occurred at and by reference to that place.

22    In my view—which I state intending no disrespect—the questions of law so identified and the grounds advanced in respect of them are more complicated than the circumstances here require. Ms Dring’s case is conceptually simple (granting that the law applicable to it is not). She maintains that the injury that she sustained to her left hip arose out of, or in the course of, her employment with Telstra. 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 is a question of law—see, generally: Hope v Bathurst City Council (1980) 144 CLR 1, 7 (Mason J, with whom Gibbs CJ, Stephen and Aickin JJ agreed, Murphy J not deciding); Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64, [63] (Rares, White and Banks-Smith JJ). Ms Dring contends that the Tribunal did not correctly construe—and, thereby, misapplied—what is meant by that central statutory expression. If she is right about that, then her appeal will succeed (albeit that there might, nonetheless, be a need to consider the form in which that success should resonate).

23    By way of relief, Ms Dring seeks orders setting aside the Tribunal’s Decision and substituting for it a determination that Telstra is “…liable to pay compensation to the [a]pplicant pursuant to section 14 of the [SRC Act] in respect of the injury sustained on 14 April 2016”.

The competing submissions

24    As is stated above, the core of Ms Dring’s submissions is that the Tribunal misapplied the statutory test inherent in the definition of “injury”. She maintains that the injury that she sustained on 14 April 2016 arose because of a hazard that was present at the Novotel on Collins Street hotel—specifically, the wet, slippery tiles upon which she fell. Because that hotel was a place at which Telstra had encouraged or induced her to be for the purposes of accommodation whilst in Melbourne, it followed that the injury arose out of, or in the course of, her employment. She maintained—and maintains—that the social interactions that she enjoyed with Ms McKenzie on the night in question were irrelevant: the “course of employment” criterion was satisfied simply because the hazard that caused her to fall and injure herself was present at the hotel in which Telstra had accommodated her.

25    Telstra, by contrast, submits that Ms Dring’s injury was referable to the social activities in which she engaged on that night. Although she was perfectly entitled to partake of them, they were not activities in which Telstra had encouraged or induced her to engage, such that the injury that resulted from them could not properly qualify as one that arose out of, or in the course of, her employment.

Arising out of, or in the course of, employment

26    An injury that arises out of an employee’s employment is one that is suffered in the process of performing the work that the employee is retained to perform, or other work incidental thereto: Charles R. Davidson and Company v M’Robb (1918) AC 304, 321 (Lord Dunedin); O’Kane v Comcare (2014) 221 FCR 482, 490-491 [56] (Robertson J). In order for an injury to arise out of employment, then, there must be a causal relationship between the injury and the work: Telstra Corporation Ltd v Bowden (2012) 206 FCR 207, 213 [32]-[35] (Murphy J); Kennedy v Telstra Corporation (1995) 61 FCR 160, 164 [17] (Tamberlin J). Injuries sustained whilst actually performing work are obvious examples.

27    What is meant by “the course of…employment” is less easily identified. In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, Dixon J (with whom, in the result, McTiernan J agreed; Latham CJ dissenting) held (at 294):

The general principle governing the ascertainment of the “course of employment” appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful… Where the accident arises shortly before the beginning of actual work, or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.

28    More than a decade later in Humphrey Earl Limited v Speechley (1951) 84 CLR 126, 133 (Dixon J, with whom Williams, Webb and Fullagar JJ agreed; McTiernan J agreeing in the result”), his Honour observed (emphasis added):

[T]he question whether [an injury] occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorized to do in order to carry out his duties.

…

…to make what he did [or was doing at the point that he was injured] part of the course of his employment it is necessary that it should be reasonably connected with the particular situation which the performance of his duty to his employer had created.

29    Whereas “arising out of…employment” denotes a causal relationship between an employee’s work and an injury sustained whilst performing it, “in the course of…employment” denotes a temporal connection. An injury will qualify as one sustained in the course of an employee’s employment if it can be said that it was sustained in circumstances possessing a sufficient connection to the employee’s work.

30    Identifying what is sufficient can be tricky. It is well recognised that injuries that are sustained outside of periods in which an employee is performing his or her work (or tasks incidental to it) can qualify as injuries sustained “in the course of…employment”. An injury sustained during a short work break—a tea break, for example—would typically (although, perhaps, not always) qualify: see, in that vein, Commonwealth v Oliver (1962) 107 CLR 353, 363 (Menzies J, with whom, in the result, Dixon CJ agreed; Owen J dissenting).

31    In Mendez v Telstra Corporation Limited (1998) 147 FLR 394, 395 (Handley JA, with whom Mason P and Sheppard A-JA agreed), the NSW Court of Appeal held that the course of an employee’s employment commences when the employee starts work in accordance with his or her ordinary or overtime hours of work and ends when the employee completes those hours. Thus an injury that is sustained before an employee arrives at, or after he or she leaves, work on any ordinary work day might normally be thought not to have been sustained in the course of his or her employment (subject always to other provisions of the SRC Act that, in some circumstances, deem otherwise).

32    That last observation does not apply universally. The authorities acknowledge a distinction between non-working intervals—that is to say, periods of time over which an employee does not perform his or her work duties—that occur between two discrete periods of work (on the one hand) and non-working intervals that occur throughout an overall period or episode of work (on the other). In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (hereafter, “Hatzimanolis”), the majority of the High Court discussed that concept in the following terms (at 483):

…an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, 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…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.

33    Hatzimanolis is an important case. Mr Hatzimanolis lived in New South Wales, where he was employed on a casual basis by the respondent, ANI Corporation Ltd. He expressed interest in being—and, later, was—sent to perform some electrical work at the Mt Whaleback mine near Newman, in the Pilbara region of Western Australia. Specifically, he and some others were seconded to work on a three-month contract, during which he was expected to work approximately ten hours per day for six days each week. Over the course of that contract, the respondent provided camp accommodation and two vehicles, which the group used for transport purposes. A few weeks into his stint at the mine, Mr Hatzimanolis’s supervisor organised for the group to take the two vehicles to Wittenoom Gorge on one of their days off. On the return journey, the vehicle in which Mr Hatzimanolis was riding overturned and he was seriously injured. His claim for compensation was rejected on the basis that his injury was not one that arose out of, or in the course of, his employment. The High Court overturned that conclusion, observing (at 484; references omitted) 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…

34    There are obvious parallels between Hatzimanolis and the present case. Plainly enough, Ms Dring was not working at the time that she slipped and fell. Her injury was sustained during an interval or interlude between two periods of work. But they were not “discrete” periods of work in the sense contemplated by Hatzimanolis; they were periods within a broader episode constituted by Ms Dring’s trip to Melbourne to attend a series of workshops related to an information technology project with which she was involved. There is no doubt that the injury that Ms Dring sustained can, in those circumstances, be thought to have arisen in the course of her employment more readily than would be the case had it arisen during an interval separating two typical work days. Telstra does not contend otherwise.

35    On its face, Hatzimanolis appears to qualify as “arising…in the course of…employment” any injury that is sustained (a) during an interval or interlude in an overall period or episode of work (and b) at a place at which the employer induced or encouraged the employee to be. If that were the case, Ms Dring’s injury would qualify as one in respect of which s 14 of the SRC Act would entitle her to compensation.

36    Regrettably, the issue is somewhat more complex.

37    In Comcare v PVYW (2013) 250 CLR 246 (hereafter, “PVYW”), the High Court had occasion to consider—and, perhaps, refine—Hatzimanolis. That was the most recent occasion on which the High Court considered the circumstances in which an injury might be understood to have arisen out of, or in the course of, an employee’s employment. Given its centrality to the present appeal, it is necessary to invest some time analysing it.

38    PVYW was a case, like this one, in which an employee was injured at a hotel. The employee had travelled for work purposes to a regional office of her employer’s. Accommodation for the purposes of that trip had, as in Ms Dring’s case, been provided for her. Whilst she was having sex with an acquaintance in her hotel room one evening, a light fitting was pulled from its mount and struck her in the face. The resulting injuries (both physical and psychological) were the subject of an application for compensation under the SRC Act. The employee claimed that her injuries had arisen out of, or in the course of, her employment. The appellant, Comcare, rejected that claim; and the employee’s appeal of that rejection to the Tribunal failed. Before this court, however—both at first instance and on appeal—the employee’s contention was accepted. The High Court, by majority (French CJ, Hayne, Crennan and Kiefel JJ, Bell and Gageler JJ dissenting) upheld Comcare’s appeal, in the process concluding that the employee’s injuries had not arisen out of, or in the course of, her employment.

39    In PVYW, the employee contended, as Ms Dring contends now, that her injuries were sustained at a place at which her employer had induced or encouraged her to be. Because they were sustained during an interval or interlude in an overall period or episode of work, it followed (so she submitted) that she satisfied one of the two alternative circumstances that the High Court identified in Hatzimanolis; and that her injuries should, therefore, be understood to have arisen in the course of her employment.

40    In rejecting that contention, the majority emphasised (at 256 [16]) the importance of “…bear[ing] in mind the association which must necessarily exist (by virtue of the ‘in the course of’ limiter) between the circumstances in which the employee was injured and the employment.” Later, their Honours stressed (at 261 [33]) that “…it will always be necessary to have regard to the ‘general nature, terms and circumstances of the employment’ in determining the overall question [and a]ttention is not to be focused just upon the occasion giving rise to the injury.”

41    Under the heading “Applying the Hatzimanolis principle”, the majority made the following important observations (at 262 [38]-[39]):

The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.

It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.

42    Those observations invite an obvious inquiry: what might qualify as an injury that occurs “at and by reference to” a place? On that score, the majority in PVYW observed (at 264 [45]; emphasis added) that:

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 [the] 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.

43    In order, then, for an injury to be understood to have been sustained at and by reference to a place, there must at least be something about the place that caused the injury: that is, the injury must at least be understood to have been sustained “…because of something to do with the place”. In PVYW, the majority concluded that the relevant injury occurred because of what the employee was doing at the time, rather than because of something peculiar to the place within which she was doing it. PVYW was an activity case, not a place case (to adopt the alternatives identified in Hatzimanolis).

44    It is within that context that the majority’s conclusion must be understood. By way of summary, their Honours noted (at 268 [60]):

…for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.

45    This court had occasion to consider PVYW in Lee v Transpacific Industries Pty Ltd (2013) 136 ALD 652 (hereafter, “Lee”; Siopis J). In that case—not unlike this one—an employee suffered an ankle injury when he slipped on the wet forecourt of the remote Pilbara roadhouse at which he had stopped in order to make use of a public restroom. He was in the process of driving to his home in Newman, Western Australia, having earlier attended a medical appointment in Port Headland, some 450km to the north. That appointment had been made for him by his employer. It pertained to a workers compensation claim that he had made in respect of an unrelated knee injury. The Tribunal determined that the ankle injury was not sustained in the course of the employee’s employment. That determination was overturned on appeal to this court.

46    The court, in Lee, embarked (at 659-660 [45]-[49]) upon the inquiries to which the majority adverted in PVWY (above, [41]):

The first condition in the PVYW test is satisfied because the injury occurred while Mr Lee was not engaged in actual work when he sustained his ankle injury at the Auski Roadhouse.

The second question in the application of the PVYW test is: what was the employee doing when injured? There is no dispute that, having stopped at the Auski Roadhouse, Mr Lee was walking on the forecourt on his way to the toilet.

The next question (described by the majority as “the essential enquiry”) is how the injury was brought about: was it by reference to a place, or by reason of the employee being engaged in an activity? The question then is, whether the employer induced or encouraged the employee to be at that place or to engage in the activity.

First, as to the activity in which Mr Lee was engaged when the injury occurred, namely, taking a toilet break in the course of a long road trip, that activity was plainly within the scope of the activity which the tribunal found that the employer had encouraged or induced Mr Lee to undertake. On that basis alone, the inevitable result of the application of the test in PVYW is that Mr Lee’s injury occurred in the course of his employment with Transpacific.

Second, in applying the PVYW test in the context of the circumstances of the injury and the place at which the injury occurred, the result is the same. It follows from the tribunal’s finding that the employer encouraged or induced Mr Lee to undertake the road trip to Port Hedland, that the employer encouraged or induced Mr Lee to be at the Auski Roadhouse for the purpose of taking a toilet break, as an incident of undertaking that long road trip. On the facts found by the tribunal, the injury occurred by reason of the presence of a liquid on the forecourt at the place at which Mr Lee was encouraged or induced by his employer to be. The injury, thus, occurred by “reference to the place”, namely, the slippery surface of the forecourt of the Auski Roadhouse, at which his employer had encouraged or induced him to be. On the application of the PVYW test, therefore, Mr Lee’s injury would also, on this basis, be found to be within the course of his employment with Transpacific.

47    There are obvious parallels between Lee and the present case. Just as Mr Lee’s employer had encouraged him to travel to Port Hedland to attend a medical appointment (and, implicitly, to take such rest breaks throughout the course of that long journey as he required), so too did Telstra encourage Ms Dring to travel to Melbourne for the purposes of attending some workshops (and to be accommodated at the Novotel on Collins Street to that end). Just as Mr Lee’s injury “occurred by ‘reference to the place’, namely, the slippery surface of the forecourt of the Auski Roadhouse”, so too did Ms Dring’s injury occur, at least in part, on account of a hazard—slippery, recently-mopped tiles—that was present at the hotel at which she was accommodated.

48    There is also, of course, a glaring point of distinction that separates Lee from this case: whereas Mr Lee’s interaction with the hazard that occasioned his injury occurred whilst he was returning from an appointment that his employer had made for him, Ms Dring happened across the wet tiles upon which she slipped and fell in the early hours of the morning, after some eight-and-a-half hours of weeknight socialising, only a matter of hours before she was to attend workshops the following day, which were the reason for her being in Melbourne. At issue presently is whether that might suffice to sever any connection between Ms Dring’s injury and the course of her employment.

49    That issue—and the significance to it of the majority’s reasoning in PVYW—was the subject of consideration in Westrupp v BIS Industries Ltd (2015) 238 FCR 354 (hereafter, “Westrupp”; Buchanan, McKerracher and Katzmann JJ). There, the employee, Mr Westrupp, was a “fly in/fly out” worker who was injured as a result of an assault that occurred whilst he was socialising between shifts at a tavern maintained within the camp at which he was accommodated. The Tribunal rejected his claim for compensation under the SRC Act. On appeal, a full court of this court overturned that result.

50    After embarking upon a thorough analysis of the majority’s reasoning in PVYW, their Honours recognised (at 365 [53]-[54], emphasis added):

…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…

…it is not necessary to ask whether the place at which the injury occurred and the activity in which the employee was engaged were each induced or encouraged by the employer… However, in some cases (and PVYW was one such case) the employee’s own conduct might indicate a lack of connection with employment.

51    Later, their Honours considered (at 367 [63]) whether anything that the majority said in PVYW might impact upon their application of the tests established by earlier authorities:

In the present case, the only question which might arise from PVYW is whether Mr Westrupp is entitled to compensation because the employer induced or encouraged him to spend an interval or interlude at a particular place and he did so in a way which maintained a sufficient connection with his employment.

(emphasis added)

52    That observation has potential ramifications for this case. Unlike PVYW, Westrupp was a “place” case. The court accepted (at 365-366 [55]) that, at the time of the assault that occasioned it, Mr Westrupp was not engaged in any activity to which his injury could be thought to have been referable. Instead, his injury arose because of the presence of an aggressive patron at the tavern. Nonetheless, their Honours recognised that there might be something about the way in which an employee spends an interval or interlude at a particular place that suffices to sever any connection between an injury referable to that place (on the one hand) and the employee’s employment (on the other).

53    There was no such severing of the connection between injury and employment in Westrupp. On that score, their Honours observed (at 366 [56]) that there was not “…anything exceptional in taking a drink at the wet mess…which was available to residents in the camp a short walk from the [single persons quarters part of the camp] and which was an adjunct to the accommodation provided by Mr Westrupp’s employer”.

54    Nonetheless, the court’s observation in Westrupp (above, [51]) invites the question: in what circumstances might an employee’s conduct sever what would otherwise be a connection between an injury referable (or partly-referable) to a place (on the one hand) and the employee’s employment (on the other)? When might the circumstances in which an employee is injured because (or partly because) of a hazard present at a particular location rise to the standard of “exceptional”, such that the connection between the injury and the employment is extinguished or absent?

55    Those are not easy questions to answer. 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.

58    The Tribunal correctly concluded that “Ms Dring’s injuries were a result of the activities in which she had been engaged” and that those injuries “…did not occur merely by reference to a place”. The majority in PVYW did not conclude that an injury must be referable only to one or the other (activity or place). Indeed, as Ms Dring properly acknowledged, their Honours appear to have left open the possibility in any given case that, notwithstanding that an injury was associated with a particular place, circumstances might nonetheless not “…be sufficient to bring that injury within the course of the employee’s employment”: PVYW, 262 [40] (French CJ, Hayne, Crennan and Kiefel JJ). Admittedly and with respect, that possibility is difficult (although not impossible) to reconcile with what their Honours said at [38] of PVYW (above, [41]); but, as this court, in Westrupp, expressly acknowledged (at 365 [53] (Buchanan, McKerracher and Katzmann JJ—above, [50])), there is an “obvious possibility” that an injury might be referable to both a place and an activity. For the purposes of establishing liability under the SRC Act in respect of an injury, it is not necessary to demonstrate that an employer encouraged or induced both the activity in which an employee was engaged at the time that the injury was sustained and the employee’s attendance at the location in which that activity took place: Westrupp, [54] (Buchanan, McKerracher and Katzmann JJ—above, [50]). However, an injury sustained at and because of a hazard peculiar to a particular place at which an employee was encouraged or induced to be might, nonetheless, arise otherwise than in the course of his or her employment if “…the employee’s own conduct might indicate a lack of connection with employment”: Westrupp, 365 [54] (Buchanan, McKerracher and Katzmann JJ—above, [50]).

59    Ms Dring’s conduct in this case was of that nature. Whereas there is nothing “exceptional” about an employee enjoying a drink at a tavern located within a camp at which he is temporarily accommodated (Westrupp), or stopping off for a toilet break during a long road trip (Lee), or sleeping within camp accommodations (McCurry v Lamb (1992) 8 NSWCCR 556, 559 (Handley JA, with whom Clarke JA agreed)), or having a shower in a hotel room whilst on a work trip (Comcare v McCallum (1994) 49 FCR 199 (Lockhart J, with whom Hill and Whitlam JJ agreed)), the same cannot be said about Ms Dring’s evening of 13 April 2016. As the Tribunal noted, “…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”. Again, no disapproving undertones should be read into that. The import of that observation is simply this: by reason of the fact that her injury occurred at the time that it did, after the extensive socialising that preceded it and in the context of the work to which she was to attend later that morning, the circumstances that gave rise to Ms Dring’s injury lacked a connection with her employment sufficient to constitute it as one that arose out of, or in the course of, her employment.

60    The line that separates injuries that are sufficiently connected to employment from those that are not is, it must be conceded, not easily drawn. Identifying it, for the purposes of a given case, will involve assessments based upon impression and degree. If Ms Dring had slipped over after returning to her hotel room at 10:30pm instead of 2:30am, for example, it might well be that a different outcome would have been warranted. Had she returned at 7:30am, the conclusion might have been clearer. Regardless, in the circumstances as the Tribunal has found them, Ms Dring’s submission that the injury that befell her on 14 April 2016 was one that arose out of, or in the course of, her employment cannot be sustained. As the Tribunal put it: “…the extent and duration of her personal activity resulted in a broken nexus with her employment…”

The discrete appeal grounds

61    The observations recorded above are sufficient to dispose of the central question of law that confronts the court in this appeal. Nonetheless—and for the purposes of addressing any doubt that might exist—I will address the individual grounds to which Ms Dring’s notice of appeal adverted.

Ground one: was the “place test” narrowed?

62    Ms Dring submits that the Tribunal effectively narrowed the test by which the SRC Act determines whether compensation should be paid in respect of injuries “…sustained in an overall period of work occurring at and by reference to a place” (above, [21]). This ground is the ground most closely aligned to what I have considered to be the central question of law upon which this appeal turns. The observations that I have made above in respect of that central question sufficiently answer that ground.

63    Respectfully—and for reasons already stated (above, [58]-[59])—I do not accept that the Tribunal’s Decision proceeded upon an impermissible “narrowing” of the test applicable in respect of an injury sustained at and by reference to the location at which it occurred.

Ground two: irrelevant considerations

64    Ms Dring submits that, by impermissibly “narrowing” the test that it should have applied to the circumstances surrounding her injury, the Tribunal proceeded to take account of irrelevant considerations, particularly that:

(1)    the injury “…could not entirely be divorced from her social activities”; and that

(2)    there was an expectation, founded in “common sense”, that, at the time that her injury was sustained, she ought to have been “securely in her hotel room”,

(See, in each case: Tribunal’s Decision, [63]; above, [19]).

65    For the reasons already expounded (particularly at [58]-[59] above), I do not accept that either of those considerations was irrelevant. Telstra did not encourage Ms Dring to be in the hotel foyer at 2:30 am on a day that she was to attend business-related workshops. That reality informs whether or not the circumstances in which Ms Dring sustained her injury possessed a connection with her employment that was sufficient to invoke the definition for which s 5A of the SRC Act provides.

Ground three: no evidence that the injury was referable to social activities

66    By her written submissions in the appeal, Ms Dring contended as follows:

The Tribunal found that the hazard was engaged by reference to the place where she was required to stay, not the social activity, which had ceased. The time at which the hazard was encountered, being 2.30am “following an extensive personal night out” [Tribunal’s Decision, [60]] did not form evidence relevant to any test for liability by reference to either activity or place. The activity engaged in when the injury occurred, that is walking away from the toilet and slipping on the wet surface, was not identifiably part of any “social activity” and wasn’t capable of being so characterised.

67    As has already been explored, Ms Dring’s extensive socialising on the evening of 13 April 2016 informs the court’s assessment of the circumstances within which she sustained her injury. By reason of her conduct, those circumstances lacked a connection with her employment sufficient to constitute that injury as one that arose out or in the course thereof.

68    Ms Dring’s injury was at least partly referable to her activities on the night of 13 April 2016: had she not done what she and Ms McKenzie did that evening, she would not have returned to the Novotel on Collins Street hotel at 2:30am and would not have had occasion to interact with the hazard—the wet, slippery tiles—in the manner that she did. None of that is controversial.

69    Ms Dring’s attempt to constitute the activity in which she was engaged at the time that she slipped and hurt herself—that is, “…walking away from the toilet and slipping on the wet surface”—as unrelated to the “social activity” by which the rest of her evening was largely characterised is, with respect, misconceived.

Conclusion

70    The Tribunal did not misconstrue the statutory test inherent in the definition of “injury” in s 5A of the SRC Act. The injury that Ms Dring sustained early in the morning of Thursday, 14 April 2016 was not one that arose out of, or in the course of, her employment with Telstra. The Tribunal’s Decision—proceeding, as it did, upon that conclusion—was not the product of legal error that this court should correct on appeal.

71    The appeal should (and will) be dismissed with costs.

Associate:

Dated:    26 May 2020