Oaks Hotels and Resorts (Qld) Pty Ltd v Blackwood and Anor [2014] ICQ 23

I refer to earlier postings about Comcare v PVYW [2013] HCA 41.

The President was at pains to make the point that the definition of “injury” as defined in s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA)[1] was different than that in the Safety, Rehabilitation and Compensation Act 1988 (Cth) because of the qualification of the wording “significant contributing factor”:

Martin J, President

[8] After the evidence and submissions had concluded in the Commission, the High Court gave its decision in Comcare v PVYW[5]. The Commissioner sought, and received, further submissions on the applicability of the reasoning in that case. While that was eminently sensible, it must be borne in mind that the statutory test applied in Comcare v PVYW differs from the test in s 32 of the WCRA. The relevant provisions considered by the High Court were described in this way:

[2]The respondent claimed compensation for her injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SR&C Act”). It provides that Comcare is liable to pay compensation in respect of an “injury” suffered by an employee. An injury for which compensation is payable includes a physical or mental injury “suffered by an employee … arising out of, or in the course of, the employee’s employment”. The question the respondent’s claim for compensation raised for the Administrative Appeals Tribunal (“the AAT”) and the courts below was whether her injuries were suffered “in the course of” her employment.

[9] The difference in the statutory provisions is obvious. The High Court did not have to consider whether Ms PVYW’s employment was a “significant contributing factor”. That added factor was considered by Keane JA in Newberry v Suncorp Metway Insurance Ltd[6]:

[41] … I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been “a significant contributing factor to the injury”. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment”.

[42] Further, there is no warrant in the language of s 32 of the WCRA for reading the words “if the employment is a significant contributing factor to the injury” as lessening the stringency of the requirement that the injury “arise out of the employment”, as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words “if the employment is a significant contributing factor to the injury” are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.

[10] The words “significant contributing factor” were introduced to a predecessor to the WCRA in 1994. Over time, that was changed to “the major significant factor” and then back again to its current expression. It is reasonably clear from the Explanatory Notes which accompanied some of the relevant Bills that the purpose of adding these terms was to “exclude those injuries which have only a minimal work related component”[7].

[11] With that in mind, I turn to the principles which were considered in Comcare v PVYW[8]—a case in which a Commonwealth employee was injured by a falling light fitting whilst engaged in sexual intercourse. French CJ and Hayne, Crennan and Kiefel JJ considered that the question of whether or not an injury arose from a person’s employment was to be determined according to the principles set out in Hatzimanolis v ANI Ltd.[9] In PVWY, their Honours stated:

“[38] 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 while 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.” (emphasis added)

[12] In applying these principles to the facts of Ms Knauer’s case, it is immediately apparent that Ms Knauer “suffered [personal] injury, but not while engaged in actual work” and that the personal injury has occurred “at and by reference to the place” at which she found herself at the relevant time. The Commission made findings in these terms,[10] and went on to consider whether or not Ms Knauer was induced or encouraged to be at the relevant place, that is to say, at the apartment, considering the following passage from the judgment of Kiefel J in Comcare v Mather:[11]

“[22] In my view “encouragement” is not to be taken as of narrow meaning and limited to some positive action and in specific terms which might lead the employee to undertake a particular activity or attend at a particular place. The two particular cases which their Honours in Hatzimanolis were concerned with in this context, The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353 and Danvers v. Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 involved, respectively, an expectation of presence coupled with a recognised practice and making available facilities for an employee’s use. The facts in Hatzimanolis did not require the Court to discuss in greater detail what was encompassed by the phrase “induced or encouraged”. To be said to have, expressly or impliedly, induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestions, recognition of practices, fostering of participation, or providing assistance and may include the exercise of discretion or choice on the part of the employee. Further attempt at definition would be fruitless. In each case, the question will be whether the attendance at the place at which or the undertaking in which the employee is involved when injured in an interval falls within the ambit of statements, acts or conduct made by the employer and what may be said to logically arise from them. And in each case, importantly, they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed.” (emphasis added)

 

David Cormack – Brisbane Barrister & Mediator

 

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