RAMSAY HEALTH CARE AUSTRALIA PTY LTD V WYATT [2017] WADC 145 CORAM – BIRMINGHAM QC DCJ – DATE OF DECISION 10 NOVEMBER 2017 ON APPEAL FROM WORKCOVER WA
The worker was employed as a nurse at the Peel Health Campus and was not rostered to work during 5 – 9 April 2014. On 8 April 2014, one of her rostered days off, she attended the hospital to complete a form that she had been requested to complete previously.
Her attendance at her place of employment did not relate to performing nursing duties. When at the employers premises the worker went to sit on a chair near the computer she intended to use, misjudged the location of the chair and landed heavily on her buttocks on the floor.
She suffered injury and claimed workers compensation, her claim was denied and she commenced proceedings against the employer at WorkCover for weekly payments of compensation and statutory expenses.
The worker claimed she had suffered an 'injury' in s 5(a) of the definition of injury in s 5 of the Workers' Compensation and Injury Management Act 1981 (the Act), that is to say, 'a personal injury by accident arising out of or in the course of her employment'.
The employer denied liability on the basis they said the injury did not arise out of or in the course of her employment.
His Honour Birmingham QC DCJ stated –
"The respondent's application was heard by a sessional arbitrator over six days during a six-month period from April to October 2015 and thereafter his decision was reserved. The arbitrator's decision was not forthcoming prior to his appointment ceasing. In September 2016 the Registrar of the Arbitration Service allocated the matter to Arbitrator Nunn to determine the application from the transcript of proceedings and the evidence adduced before the sessional arbitrator." and "On 29 November 2016, Arbitrator Nunn found for the respondent and ordered that the appellant pay the respondent weekly payments of compensation for total incapacity for the period from 8 April 2014 to 12 November 2014 and from 12 to 22 January 2015. Whilst the arbitrator was not satisfied that the respondent had suffered the injury as alleged by her, he found that she had suffered 'injury' as defined in s 5(d) of the definition in s 5, that is to say, that the respondent's employment had contributed to the acceleration of a pre-existing disease – a case not generally articulated or pursued by the respondent."
The employer appealed the decision pursuant to s 247(1) of the Act.
There was one ground of appeal –
The learned arbitrator erred in law in finding that the respondent's fall occurred 'in the course of the employment' and that 'employment' was a contributing factor to the aggravation of a pre-existing disease for the purpose of the definition of 'injury' under s5 of the WCIMA in that he:
- Articulated an incorrect test derived from Overstone v Fire & Emergency Services, C4-2009, 11 February 2009, namely whether a worker's act was reasonably required or authorised to be done in order to carry out his actual duties – which test was not applicable to a case of alleged injury occurring outside ordinary work hours and was not supported by the principles articulated by the High Court in ComCare v PVYW [2013] HCA 41; (2013) 250 CLR 246 and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473;
- Failed to hold that where the employer did not require, induce, encourage, expect or authorise the employee to perform an activity at the time and place, outside ordinary work hours, where the activity occurred that activity and any resulting aggravation of a pre-existing disease was not 'in the course of the employment' and not 'employment' for the purpose of deciding whether there was an 'injury' under s5of the WCIMA;
- Failed to hold that the conduct of the respondent by attempting to sit in a chair outside ordinary work hours was neither 'in the course of the employment' nor 'employment' and that the respondent's intention of using a computer in the future to complete the graduate evaluation form was irrelevant.
The learned Arbitrator had found the worker's injury 'arose in the course of her employment' in that the injury was suffered when attending the hospital for a purpose 'reasonably incidental' to her employment.
His Honour went on to state –
"In the present case, the critical question to be addressed by the arbitrator was whether the evidence satisfied him that the appellant's activity was an act that was reasonably required, expected or authorised to be done in order to carry out her actual duties or necessarily incidental thereto, that is to say, in the context of what the respondent was employed to do. Having reviewed the arbitrator's findings and reasons, I am satisfied that in making the finding at [301] the arbitrator did not apply the correct test when determining if the respondent's injury occurred in the course of her employment. The respondent suffered her injury outside ordinary work hours. The arbitrator ought to have considered, and applied, the test as articulated by the High Court in Hatzimanolis v ANI Corporation Ltd, 484; Comcare v PVYW [19], [30], [31], [35]." and "The arbitrator positively found that the respondent was not expressly required or requested to attend the hospital and complete the form on 8 April 2014 ([283(j)]). Seemingly, when considering what might have been impliedly required, expected or authorised by the appellant, the arbitrator took into account the respondent's subjective belief."
His Honour concluded –
"Having regard to the findings made, I am satisfied that ground 1 of the appeal has been made out. It follows that leave to appeal should be granted, the appeal allowed, and the decision of the arbitrator set aside. Having undertaken a review of the facts found by the arbitrator that are unchallenged in this appeal, I am satisfied that, had the proper test been applied, the only finding open on the evidence was that the injury suffered by the respondent was not a personal injury by accident arising out of or in the course of her employment, or whilst the respondent was working under the appellant's instructions, as defined in the Act. Accordingly, the respondent's claim must be dismissed."
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