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CITATION: Theiss Pty Ltd AND Q-COMP (C/2010/11) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Theiss Pty Ltd AND Q-COMP (C/2010/11) PRESIDENT HALL DECISION [1] On 27 November 2008, Robert James Bradford lodged an Application for Compensation with WorkCover Queensland. By a letter dated 28 April 2009, WorkCover Queensland advised Mr Bradford that WorkCover Queensland had decided that the claim was one for rejection. Mr Bradford sought a Statutory Review. By a decision dated 27 August 2009, Q-COMP set aside the decision of WorkCover Queensland and substituted a decision that the claim was one for acceptance. Mr Bradford's employer, viz., Theiss Pty Ltd, appealed against Q-COMP's decision to the Queensland Industrial Relations Commission. By a decision dated 5 February 2010, the Commission dismissed the appeal. Theiss Pty Ltd now appeals to this Court. (Henceforth, I shall refer to Thiess Pty Ltd as the Appellant and shall refer to Q-COMP as the Respondent.) At all times the issue has been whether a back injury sustained by Mr Bradford was an injury within the meaning of s. 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). (There is no Appeal against the Commission's decision that any injury was not a new injury but, an aggravation of an existing back injury). The issue then becomes whether the personal injury was captured by s. 32(3)(b) of the Act which provides: "(3) Injury includes the following (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation (i) (ii) (iii) a personal injury; a disease; a medical condition if the condition becomes a personal injury or disease because of the aggravation.". 1 July 2010

[2]

The critical words are "in the course of employment" and "significant". [3] The expression "in the course of employment" has a long and tortured history. It is sufficient to note that even in the era where the formulation was "arising out of and in the course of employment", it was recognised that "in the course of" did not require a temporal connection with the employment. In Charles R Davidson and Co v M'Robb1 at 321, Lord Dunedin observed of the expression "in the course of employment": "In my view [it] ... is a different thing from 'during the period of employment'. It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work - e.g., in the workman's case the taking of meals during the hours of labour; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof.". After the conjunctive expression was abandoned and the disjunctive expression, viz., "arising out of or in the course of employment", was substituted, a more liberal construction gradually came to be adopted. The expression "in the course of employment" came to be recognised as including not only something which is part of the worker's employment but also something which is incidental to his service, compare Whittingham v Commission of Railways2 at 29 per Dixon J; Henderson v Commissioner of Railways (W.A.)3 at 294 per Dixon J;

1 2

Charles R Davidson and Co v M'Robb [1918] AC 304 Whittingham v Commissioner of Railways (1931) 46 CLR 22 3 Henderson v Commissioner of Railways (W.A.) (1937) 58 CLR 209

2 and Humphrey Earl Ltd v Speechley4 at 133 per Dixon J. Further, a broad view was taken of "incidental". In Henderson v Commissioner of Railways (W.A.) op. cit. at 294, Dixon J said: "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.". By 1992 a majority of the High Court in Hatzimanolis v ANI Corporation Ltd5 at 483 per Mason CJ, Deane, Dawson and McHugh JJ, was prepared to say: "For the purposes of workers' compensation law, 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, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.". That passage was much relied upon by the Commissioner who dealt with this matter at first instance. [4] On the facts the attraction of the passage drawn from Hatzimanolis v ANI Corporation Ltd ibid, is obvious. Mr Bradford lived in Mackay. He worked at a mine which is about 170 km from Mackay. He was rostered for four twelve-hour shifts worked on four consecutive days and nights. On the following four days Mr Bradford was not rostered for work. Whilst rostered off, Mr Bradford resided at his family home in Mackay. Whilst rostered on, he resided at Kerlong Village. It is convenient to adopt the Commissioner's description of Kerlong Village: "[4] ... While rostered on Mr Bradford resided at Kerlong Village. The majority of the Kerlong Village site and the accommodation facilities are owned by Peabody Energy Australia Coal Pty Ltd (Peabody). As part of the mining services contract between Peabody and Thiess the latter operates the Kerlong Village site. Thiess owns a small portion of the accommodation facilities but the majority of the accommodation facilities are owned by Peabody. Kerlong Village is located approximately two km from Burton Mine. Mr Bradford had lived at Kerlong Village for the three years he had worked for Thiess ... The accommodation at Kerlong Village in the form of dongas is provided by Thiess to its employees free of charge in accordance with its certified agreement. Each donga houses only one employee and when that employee is rostered off the donga is not used by any other employee. Meals are also supplied free of charge to employees. Thiess provides a bus to transport employees to and from Kerlong Village and Mackay at a cost to employees of $17.50 per fortnight. Recreational facilities are also provided by the employer at the Village.".

[5]

[5]

Although there was no requirement for Mr Bradford to live at Kerlong Village, there was no realistic alternative. Moranbah was 100km away. Nebo was 80 to 85 km away. It was 43 km to Glendon and, as recorded above, it was 170 km to Mackay. Additionally, in providing free accommodation, meals and transport, the Appellant was seeking to entice Mr Bradford (and others) to reside at Kerlong Village. It is in no way surprising that the Commissioner found that the rostered-on period of four shifts over four days, constituted one overall period or episode of work. Indeed, I do not understand that finding to be agitated on the Appeal to this Court. The criticism is directed to the next stage of the Commission's journey, i.e. the phase at which the Commission moved from the generalisation that an injury during the interval between the actual periods of work within the

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Humphrey Earl Ltd v Speechley (1951) 83 CLR 126 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

3 overall period or episode of work, is readily perceived as being within "the course of employment", to consideration of the question whether the physical injury in this case should be so perceived. [6] The Appellant's argument is focussed on paragraphs [8] to [12], [34] and [36] of the Commission's decision. For convenience, I reproduce those paragraphs [8] to [12], [34] and [36]. I reproduce also paragraph [35]. "[8] Mr Bradford had a history of intermittent lower back pain for which he received chiropractic and massage treatment. In early October 2008 Mr Bradford noticed worsening symptoms of low back pain over some four to six weeks prior to the incident on 18 November 2008. He received chiropractic treatment and on 7 November 2008 underwent an X-Ray to the back region on the recommendation of his general practitioner, Dr Holford. During the night shift on 17 November 2008 Mr Bradford felt pain in his leg. He said that such pain was consistent with the type of problems he had been experiencing since early October 2008. He had resolved to seek further chiropractic treatment on his return to Mackay on completion of the four day shift period. Mr Bradford completed his 12 hour shift commencing 17 November 2008. On his return to his donga Mr Bradford washed and hung his work clothes in accordance with his usual practice. His next rostered shift was to commence at 6.00 p.m. on 18 November 2008. Some time between 4 p.m. and 4.30 p.m. Mr Bradford rose, had a shower and got ready to go to the mess at 5.00 p.m. for a meal. He took his bag and walked out the door when he saw his washing on the line. He put his bag down to take the washing off the line. Mr Bradford's evidence in cross-examination was slightly at variance with his evidence-in-chief. Theiss submitted, and I accept, that Mr Bradford gave his evidence in a genuine and truthful way. In his evidence-in-chief Mr Bradford said as he was taking the last shirt off the line he felt a sneeze coming on. He twisted his whole body to the right, squeezed his nose with his right hand and sneezed. As he sneezed he felt a massive sharp pain straight down his left leg which made him fall to the ground. In cross-examination Mr Bradford said that after removing all items of clothing from the line he bundled them together in his arms and as he was turning to go back to the door of the donga he felt a sneeze coming on. As he squeezed his nose he immediately felt pain in his back and fell to the ground. ... [34] The argument put by Thiess was that Mr Bradford had completed the task of taking the washing off the line when he sneezed and felt pain. It is contended that it was only the sneeze which caused the personal injury. While accepting that the sneeze triggered the herniation of the disc, Q-COMP submitted that the detail of the sequence of movements did not matter because of the principle established in Hatzimanolis v ANI Corporation that if a worker is at a particular place as a result of encouragement or inducement, express or tacit, by the employer, then the fact of what the worker was doing at the time of the injury is of no consequence unless what the worker was doing amounted to misconduct. Three marginally different versions of events are in evidence: (i) (ii) Mr Bradford's evidence-in-chief that he was in the process of taking the last shirt off the line when he twisted and sneezed. His evidence given under cross-examination that all washing had been taken down and was in his arms. He was turning to go back to the door of the donga when he felt a sneeze coming on. He stepped back, twisted and then sneezed. Dr Dorgeloh's report which states that Mr Bradford 'was busy taking down his washing from a line and subsequently tried to return them to his room when he bend (sic), twisted and in that moment also sneezed'. (Thiess submitted that Dr Dorgeloh's report was in error in respect to the recording of Mr Bradford bending. The Commission accepts that Mr Bradford did not give any evidence before the Commission of bending).

[9]

[10]

[11]

[12]

[35]

(iii)

[36]

In my view it is not to the point whether Mr Bradford had taken all of his washing down from the line or was in the act of removing the last item of clothing when he sneezed. The employer had encouraged Mr Bradford to wash his clothes by providing washing facilities and encouraged him to hang them on a line situated outside his donga by not directing the line's removal. As the employer had encouraged the washing and drying of clothes generally by providing communal faculties it would be reasonably expected that the employer also encouraged employees to remove their clothes from those facilities and return them to their dongas. In fact the removal of clothes from the line and return

4 to the donga would be part of the washing process. The removal of clothes from a clothes line situated outside the donga and their return after being removed from that clothes line to the donga should not be treated any differently to the removal and return from communal facilities. Even if the sneeze had occurred in a momentary hiatus between taking the clothes off the line and turning to go back into the donga it still occurred as part of an employer encouraged process.". [7] The essence of the Appellant's submission emerges at paragraphs 14, 19 and 20 of the Appellant's outline of argument [footnotes omitted]: "14. The approach outlined by the learned Commissioner above was legally incorrect - in particular the last sentence*. The correct approach was to first determine the actual circumstances giving rise to the injury rather than effectively holding that such a determination was immaterial. Consequently, that is why the evidence surrounding the mechanism of how Mr Bradford sustained the injury is of critical importance ... It was uncontentious that Mr Bradford had previous back problems, and the learned Commissioner noted this at paragraphs 8 and 9 of the reasons for decision. The circumstances surrounding how Mr Bradford sustained the injury was expressly put to Dr Dorgeloh, namely, the version Mr Bradford gave during cross examination. Accordingly, accepting that was the correct version of events, and disregarding the version conveyed to Dr Dorgeloh by Mr Bradford when examined, then the expert medical evidence acknowledges that, absent any loading on the spine, bending and twisting, the cause of Mr Bradford's injury can be attributable to the sole act of sneezing.".

19.

20.

[*To understand the first sentence of paragraph 14, it is necessary to know that paragraph 14 was immediately preceded by a reproduction of paragraph [36] of the Commissioner's decision. The "last sentence" is a reference to the last sentence of paragraph [36] ]. [8] As to paragraphs 19 and 20, the first point to make is that it is apparent from paragraph [35] of the Commissioner's decision that the Commissioner fully appreciated that there were variations in the evidence about when Mr Bradford sneezed. The second point to make is that at no stage in the course of his evidence did Mr Bradford assert that he had been bending. It was certainly not put to Mr Bradford that he had made that claim to Dr Dorgeloh. Further Dr Dorgeloh conceded that his clinical notes referred only to twisting and sneezing and made no mention of bending. In my view, the suggestion of bending should be put aside. The third point is that when one goes to the transcript, the clear distinction between Mr Bradford's evidence-in-chief and his evidence in cross-examination identified by the Commissioner at subparagraphs (i) and (ii) of paragraph [35], is more apparent than real. In examination-in-chief, Mr Bradford said: "... and when I was taking me last shirt off the line, I just felt a sneeze coming on, I just twisted and sneezed and that was it ... Now you were taking the last shirt off the line? - Yes. Felt a sneeze coming? - Yes. And you indicated by turning your head to the right? - Yes. Is that what you did? - Yes. Was it just your head, or was it the rest of your body too, or - ? - Yeah, me whole body, turned and twisted, yeah. Did you leave your hands where they were on the clothes line or take them down when you turned around, do you recollect? - Me left hand, I can't sort of really say, but I know me right hand, because I've always got a habit of squeezing me nose, so I sort of went to do the same thing, squeeze me nose and sneezed, so And when you sneezed, did something happen? - Yes, I just got - just a massive sharp pain straight down me left leg, hurt, yeah, this massive pain and it just made me fall to the ground.". In cross-examination Mr Bradford's evidence was: "Right, okay. And you described the mechanism when you - just before you felt the sharp pain and you fell to the ground, as I understood your evidence, you'd taken the last item of clothing off the line? - Yep. And I gather that was the shirt? - Yeah, yep, I'm pretty sure it was the shirt, yep.

5 Okay. And then you twisted? - Yes. And when you twisted, can you recall whether you experienced any pain? - No, no, when - no. Right, okay. So you'd taken the shirt off? - Yep. Effectively you turned - you twisted normally - ? - Yep. - as you do on any other occasion that you've taken the clothes off the line? - Yep. So you've - you were turning around - twisting around? - Yep ... So we - did you - had you thrown any items of clothing in a bag or were they in your arms, for example? Yeah, in my arms ... And were you walking back towards the front entrance of your donga? - Yeah when I Had you taken a couple of steps or were you still - ? - Yeah. - had you just simply turned? - Yeah, I'd sort of stepped back, twisted and then sort of sneezed because me door's sort of just there. Right?- Just directly behind me so, yeah, when it all happened, yeah, I just took it off - oh, yeah, I was taking it off and I felt the sneeze coming on and then just twisted - sort of stepped back, twisted and then sneezed and my back actually went ... So you've physically removed the shirt? - Yep. You've brought it down? - Yep. Into - given it bear hug? - Yep ... You just turned normally as you've done on many other occasions when you're taking the washing off the line you just turn towards the door to go into the room and to throw the items on your bed, for example? Yeah, I was actually standing still looking at the clothes line and that, yeah, before I sort of twisted - oh well, before I actually turned ... You turned normally to go into the entrance to your donga? - Um, yeah. It sort of wasn't sort of normal and that 'cause I sort of sneezed as I was turning.". In my opinion Mr Bradford's evidence was that he sneezed while twisting. Given the Commissioner's explicit finding (favourably to him) about credit, I propose to act on that opinion. I accept that in conceding that Mr Bradford gave his evidence in a genuine and truthful way, the Appellant did not concede the accuracy of his recollection. It follows that the submission at paragraph 20 of the Appellant's outline of argument is not available. [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 Ltd6 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

6

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

6 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 Commonwealth7. [10] In Hatzimanolis v ANI Corporation Ltd8 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.)9 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 Limited10 the New South Wales Court of Appeal was of the view that the enquiry was not necessary.] [11] It is faintly argued that the Commissioner erred in finding that Mr Bradford's employment was not a "significant" contributing factor to his injury. Once again, the core of the submission is that taking the clothes from the line and returning to the interior of the donga did not cause the injury. The answer is that whilst in the course of his (dirty) employment Mr Bradford sneezed and twisted whilst using his employer's facilities to wash employer supplied clothes dirtied in his employer's service. On the meaning attributed to "significant" by this Court in Qantas Airways Limited v Q-COMP and Blanch11 at 117 to 119, that evidence is more than sufficient to justify the Commissioner's finding favourable to Mr Bradford. Counsel for the Appellant seeks reconsideration of that decision. It must be stressed that the Commission did not proceed on the view that the injury arose out of Mr Bradford's employment. No Notice of Contention has been filed. The Respondent has not sought to defend the Commission's decision on the basis that the injury arose out of Mr Bradford's employment. This case is not an appropriate vehicle to consider whether the requirement that the employment be a significant contributing factor to the injury imposes a more or less stringent causal requirement than the phrase "arising out of" the employment. It is sufficient to note that in Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd12, the Court of Appeal constituted as a bench of Judges answered that question in the affirmative (where the adjective was "substantial" not "significant") and that in Popovski v Ericsson Australia Pty Ltd13, Ashley J gave a

[12]

7 8

Kavanagh v The Commonwealth (1960) 103 CLR 547 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 9 Henderson v Commissioner of Railways (W.A.) (1937) 58 CLR 209 10 Watson v Qantas Airways Limited (2009) NSWCA 322 11 Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115 12 Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd [2009] NSWCA 324 13 Popovski v Ericsson Australia Pty Ltd [1998] VSC61

7 negative answer (where, as in Queensland, the adjective was "significant"). It is not, I hasten to add, a matter of contrasting relative adjectives. Giving "a significant contributing factor" a meaning which adds to the test "arises out of" may deny "in the course of" any role. [13] Where, as here, the aggravation occurred in the course of Mr Bradford's employment, Badawi v Nexon Asia Pty Ltd14 is authority for the propositions summarised by Basten JA at [128] and [129] as follows: "128 Thus, subject to one qualification, if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury (there being no pre-existing condition or involvement of another person) the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury. 129 The qualification arises with respect to activities occurring during an interval or interlude within a period of employment. Such activities may fall within the course of employment, or they may fall outside it. If the employer has organised a particular activity and has induced or encouraged the worker to spend the interval in a particular way, the activity will fall within the course of employment, unless there was gross misconduct taking the employee outside the course of his or her employment. (Stating the matter in these terms does not indicate the precise boundaries of the qualification, but identifies an activity which falls well within the principle explained in Hatzimanolis.)".

On that approach the decision of the Commission is correct. [14] [15] The order of the Court is that the Appeal is dismissed. I reserve all questions as to costs.

Dated 1 July 2010. D.R. HALL, President. Released: 1 July 2010 Appearances: Mr S. McLeod, instructed by CLS Lawyers for the Appellant. Mr F. Lippett, directly instructed for the Respondent.

14

Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd [2009] NSWCA 324

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