Johns v Workers' Compensation Regulator
[2016] ICQ 27
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- Johns v Workers' Compensation Regulator[2016] ICQ 27
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Johns v Workers' Compensation Regulator[2016] ICQ 27
Johns v Workers' Compensation Regulator[2016] ICQ 27
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Johns v Workers’ Compensation Regulator [2016] ICQ 027 |
PARTIES: | SUSAN JOHNS (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2015/48 |
PROCEEDING: | Appeal |
DELIVERED ON: | 16 December 2016 |
HEARING DATE: | 29 November 2016 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant was employed by Woolworths – where the appellant was doing some personal shopping at the store in which she worked on a day when she was not working – where the appellant slipped and injured her ankle – where the appellant’s initial public liability claim against Woolworths did not proceed – where the appellant’s workers’ compensation claim was rejected – where the appellant said that she had been told by another staff member to check her roster and was doing so when she slipped – where the appellant’s earlier evidence and the evidence of that other staff member suggested otherwise – where the Commissioner preferred the other staff member’s account – where the appellant contended that there was evidence, not before the Commissioner, which was inconsistent with his decision – where the appellant contended that her evidence was coloured by certain actions of her lawyers that occurred prior to her giving evidence – whether it was open to the Commissioner to resolve the conflicting accounts in evidence in the way that he did Workers’ Compensation and Rehabilitation Act 2003, s 32 |
CASES: | Comcare v PVYW (2013) 250 CLR 246 Huhu v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 021 |
APPEARANCES: | Dr J Johns given leave to appear for the appellant Mr P O'Neil directly instructed by the Workers’ Compensation Regulator for the respondent |
- [1]On Sunday, 11 August 2013 Susan Johns (the appellant) attended at the Woolworths store at Harbour Town. Mrs Johns was employed at that store as a service cashier but, on that day, she was not working and was there to do some shopping. After having been in the store she, while leaving, slipped, fell and injured her ankle. Her claim for compensation was rejected by the Regulator and her appeal to the Commission was dismissed on the basis that her injury did not fall within s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act).[1]
- [2]The circumstances relating to the injury were the subject of evidence from only two witnesses – Mrs Johns and Pat Wilson, a self-service attendant who, on Sundays, also acted as a supervisor within the store.
- [3]Mrs Johns’ evidence was summarised by the Commissioner in the following way:
“[87] Johns’ evidence was that on 11 August 2013 she had attended the Harbour Town Store of Woolworths (her usual place of work) for purposes that were entirely personal and not related to her employment. Prior to her attendance at the store on that particular day the last shift of paid employment at the store by Johns had been on Thursday 8 August 2013. Whilst waiting to proceed through the express checkout lane at around 2.30 pm, Wilson the service supervisor, at the time, was said to have spoken to Johns regarding changes to the roster for the coming week and as a result of the conversation with Wilson she later re-entered the store to check her roster.
[88] After inspecting the roster which was in an area where there was no public access Johns’ evidence described how she had shortly thereafter slipped on a ‘piece of greenery’ which led to her falling to the floor causing an injury to her ankle as she was exiting the store. Johns’ claimed that the roster viewed by her had recorded an earlier start than usual on Monday 12 August 2013 which was not consistent with a roster document [Exhibit 2] tendered in the proceeding which identified her rostered hours for that day ‘17.00 - 21.30’. Johns had disputed the authenticity of Exhibit 2 however had not presented a copy of the roster said to have recorded an earlier commencement for her employment on that day.”
- [4]Ms Wilson was called on behalf of the Regulator. Her evidence was summarised in this way:
“[89] Wilson a long-term employee of Woolworths was also one of two SDA union representatives in the store, gave evidence of having worked on 11 August 2013 at the Harbour Town Store in the role of supervisor but strenuously denied having spoken to Johns on that day prior to her fall and at no time had there been a discussion with Johns regarding any roster issue. There was according to Wilson a conversation with Johns at a time shortly after her fall where her evidence described the nature of that conversation as:
‘The nature of that conversation was as I was walking up to express and she was coming out. I asked her was she okay, and she said that it’s a bit sore, and I did say to her well, what were you doing here? And she says Jeff had no milk for his coffee, so I had to come across to get some milk.’”
- [5]The difference between the two witnesses had to be resolved in order to determine the appeal. The Commissioner did so, to a substantial extent, by considering some letters which had been written by Mrs Johns. On 3 September 2013 she wrote to the Public Liability Department of Woolworths Australia Limited and, in that letter, said:
“This is a statement relating to an incident which resulted in me sustaining an undisplaced break to the right fibula.
On Sunday afternoon the 11th August 2013, at about 2.45 pm I had just completed shopping in Woolworths, Harbour town store.
As this is the store in which I am employed and having completed my shopping, I decided to check my roster for the coming week. I have completed this task and was on my way to exit the store, having almost passed the bakery I was very close to the entry gates when I slipped and fell to the floor.”
- [6]That letter was generated with respect to an intention to claim on the public liability of Woolworths. That did not proceed and on 12 November 2014 Mrs Johns wrote another letter to “Employers Mutual acting for Coles and Woolworths Australia Limited”. In that letter, she said:
“On Sunday afternoon the 11th August 2013, at about 2.45 pm I had just completed shopping in Woolworths, Harbour town store.
As this is the store in which I am employed and having completed my shopping, I headed to the checkouts.
While waiting in the checkout ‘queue’ I spoke to Pat Wilson (the acting supervisor and union rep) Pat informed me that there had been some changes to the roster and suggested that I take the opportunity to check my roster.
As I had already progressed in the queue I decided that I would complete my purchases and then go the chemist to collect items of medication from a prescription I had taken to them prior to doing my shopping.
After collecting the medication I returned to Woolworths (I had to pass the store on my way back to my car) to check my roster for the coming week. I had completed this task and was on my way to exit the store, having almost passed the bakery I was very close to the entry gates when I slipped and fell to the floor.”
- [7]Further in that letter Mrs Johns said:
“Initially this accident was considered by Woolworths to be a Public Liability Claim and I accepted their reasoning for this decision.
I stated to them that I only expected to be fully reimbursed for all my income losses and expenses incurred as a result of this incident.
Woolworths offered me $5,000 as full settlement of the claim.
Due to the fact that this amount did not even cover my loss of income I rejected the claim and sought legal advice.” (emphasis in original)
- [8]The Commissioner identified the disparity in the two letters, namely that the second letter introduced a conversation with Ms Wilson which had not been referred to in the earlier letter. The Commissioner expressed a “strong preference” for accepting the evidence of Ms Wilson as being a “more honest and reliable account than that of Johns”. He declined to accept Mrs Johns’ explanation for her checking the roster as put forward before him.
- [9]In rejecting the appeal the Commissioner accepted that the injury did not arise out of or in the course of Mrs Johns’ employment because of the following matters:
- (a)she was not required to attend her workplace on that day,
- (b)she was not rostered on for work on that day,
- (c)she was not paid for that day,
- (d)she did no work (other than checking her roster), and
- (e)her principal reason for attending the shopping centre was entirely personal, that is, to conduct her own shopping.
- [10]The Commissioner then concluded in the following way:
“[102] In the matter of Huhu v Simon Blackwood (Workers’ Compensation Regulator) Martin P dealt with an injury that occurred in an interval and made the following comments:
‘[15] … The manner in which an injury which occurs during an interval which itself occurs within an overall period of work was considered in Hatzimanolis v ANI Corporation Limited. That decision was comprehensively examined in Comcare v PVYW.
[16] For the purposes of this appeal the following principles enunciated in PVYW are relevant:
- (a)For an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.
- (b)Where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
- (c)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.
- (d)An employer is not liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but has merely required the employee to be present at the place where the activity is undertaken.
- (e)There is no justification for taking a 'wide view' of an employer's liability in circumstances where the employer could be seen to have encouraged the employee to be at a particular place.’
[103] In the case of Johns there was no evidence of inducement or encouragement by the employer to have engaged in the activity of visiting her place of work to conduct a check of the roster on 11 August 2013 and the injury that occurred whilst at her place of work happened in a public area of a supermarket utilised by the public in undertaking the activity of personal shopping which on the evidence was the activity indulged in by Johns on 11 August 2013.”
- [11]In the application to appeal there are a number of grounds set out. Not all of them were relied upon at the hearing. The outline of submissions provided by the appellant and the oral submissions made on her behalf concentrated on the finding of credit against the appellant.
- [12]There were other grounds contained within the notice of appeal but these were not the subject of either written or oral argument and, so far as it is necessary, were dealt with adequately in the written submissions by the respondent.
The credibility issue
- [13]At the hearing of this appeal Dr Johns, appearing with leave for his wife, the appellant, concentrated on the circumstances of the hearing before the Commissioner and the particular evidence relating to how Mrs Johns came to be checking the roster on that day.
- [14]Dr Johns submitted that the appellant’s evidence and her demeanour on the day were affected by conduct of her then lawyers. He told me that, shortly before entering the court room, the appellant was told that she was to be the only one giving evidence and that the other witnesses who had been arranged would not be needed. This, Dr Johns said, upset the appellant and unnerved her. That may well be right, but the issue before this court is whether or not the Commissioner made an error on the evidence which he saw and heard. Whether the actions taken by the appellant’s lawyers were unwise is not a matter for determination on this appeal.
- [15]Dr Johns also made much of the fact that the appellant had contemporaneous notes which were consistent with what she said in her second letter. That may well be so, but the existence of those notes and their relevance was not something which was agitated before the Commissioner. There was an opportunity, when Mrs Johns’ account in the second letter was challenged as being, in effect, a recent invention, when her lawyers could have sought to introduce her note as evidence that she had not engaged in recent invention. That was not done. At no point was the Commissioner made aware that the appellant had made any notes contemporaneous or otherwise relating to the injury.
- [16]It was open to the Commissioner to decide the issue of credibility in the way he did. He had to consider the evidence which was given by Mrs Johns and Ms Wilson and to consider that in the light of the letters which had been written by the appellant. It was open to him to find that the earlier letter, being the first version of events put forward, was more reliable even though it was inconsistent with her second letter.
- [17]The Commissioner had, on the evidence as he found it, then to determine whether or not the injury fell within s 32 of the Act. He did this by reference to the appropriate tests and the decision he arrived at was one which cannot be demonstrated to have been fou