Herniated disc (following sneezing) whilst taking washing off the line in an accommodation village – course of employment?

Theiss Pty Ltd AND Q-COMP (C/2010/11)

 Theiss appealed the decision of the Commission arguing that the sneeze which culminated in a herniated disc, whilst taking washing off the line in a remote accommodation village was not within the course of employment. To a lesser degree Theiss contended it was not a significant contributory factor.

President Hall dismissed the appeal relying on Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473:

[9] As to paragraph 14 of the Appellant’s outline of argument, if the Commissioner treated as immaterial the issue about whether the trigger of the pain was (a) a sneeze while twisting or (b) a sneeze, the Commissioner did so in (understandable) reliance on a passage from Hatzimanolis v ANI Corporation Ltd at 491, which the

Commissioner reproduced at paragraph [31] of the Commissioner’s decision [emphasis added]:

“Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or

episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly

or impliedly, has induced or encouraged the employee to spend that interval or interlude at a particular place

or in a particular way. Indeed, the modern cases show that, absent some 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’.”.

For myself, I should add that I can see no difference between a sneeze (whether or not accompanied by twisting) rendering a previously damaged back symptomatic on the one hand and vomiting, rupturing an oesophagus; as to which, see Kavanagh v The Commonwealth (1960) 103 CLR 547.

[10] In Hatzimanolis v ANI Corporation Ltd at 491, Toohey J identified that in each of the passages drawn from the joint decision of Mason CJ, Dean, Dawson and McHugh JJ, cited herein at paragraph [3] and [9] of this

Decision, their Honours were referring to the outcome of the application of principle to particular factual situations.  However, if it be necessary to measure what Mr Bradford was doing when he sneezed against the test propounded in Henderson v Commissioner of Railways (W.A.) (1937) 58 CLR 209 at 294 per Dixon J, cited herein at paragraph [3] of this Decision, the Commissioner undertook that task* and concluded that the test had been satisfied. At paragraphs [32] and [33] of the Commissioner’s decision, the Commissioner observed:

“[32] Did Thiess induce or encourage Mr Bradford to spend an interval at a particular place or in a

particular way? Earlier in this decision it was noted that Thiess had provided communal laundry and

drying facilities for employees. This is despite Thiess also providing to employees four sets of work

clothes for a four shift period. It is a reasonable inference that Thiess not only contemplated but

facilitated employees washing and drying clothes, whether they be work clothes or their own clothes.

Mr Bradford’s evidence was that for three years he had engaged in the practice of washing his work

clothes at the end of his first and third shifts in order to ensure that he had sufficient clean clothes for

the roster period and the commencement of the next roster period. There was no evidence, nor could

there reasonably be expected to be any, that Mr Bradford specifically or employees generally, had

been directed not to wash their employer issued work clothes during the four day roster period. Any

such direction would have been a nonsense in light of the provision of laundry and drying facilities

and the nature of work performed by employees at mine sites.

[33] It is true that Mr Bradford hung his washing on a line outside of his donga and not on the line erected

by his employer. However, there was no evidence that Mr Bradford had been directed to remove the

line or not hang his washing on the line. Had any such direction(s) been issued and had Mr Bradford

ignored it then arguably a case of misconduct may have been able to be raised. This is not the case

here nor did Thiess submit that Mr Bradford engaged in misconduct because he erected the line.

Absent any direction I consider that Thiess gave tacit encouragement to Mr Bradford’s practice of

hanging his washing on the line erected outside his donga.”.

It cannot be contended that the Commissioner’s conclusions were not reasonably open on the evidence. [*For

completeness, I add that in Watson v Qantas Airways Limited (2009) NSWCA 322 the New South Wales Court of Appeal was of the view that the enquiry was not necessary.]

Brisbane Barrister – David Cormack

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