Blackwood v Ziebarth[2016] ICQ 5

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   Mr Ziebarth says that he was injured at home when he was hurrying to answer the mobile telephone provided by his employer. The Regulator’s refusal of compensation was overturned in the Commission.
2. [2]
   The parties agreed on a statement of facts which, so far as they are relevant, were:

   1. (a)
      at all material times Mr Ziebarth was a worker as defined in the Workers’ Compensation and Rehabilitation Act 2003 (the Act);
   2. (b)
      it was a term of his contract of employment that he make himself available to be on-call from time to time;
   3. (c)
      he was supplied with a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him while on-call;
   4. (d)
      at all material times he was on-call;
   5. (e)
      at all material times, and pursuant to the terms of his contract of employment, he was responsible for maintenance and repair issues associated with his employer’s fleet of trucks.
3. [3]
   Mr Ziebarth was employed as the Fleet Service Manager at the Tully Depot of Blenners Transport Pty Ltd in Cairns. His injury came about in a manner described by the Deputy President as follows:

“[7] The appellant told the Commission that he was at his Mission Beach home on Thursday, 21 March 2013. At about 10.00 pm, the appellant went for a shower. Whilst showering, the appellant heard his work mobile telephone ringing. He knew it was his work mobile telephone because of its distinctive ring tone. The mobile telephone was located on his bedside table. He told the Commission:

‘I moved out of the shower through the gap and into the glass and headed towards the door. And then I fell forwards and caught myself. My right hand caught the corner of the vanity and my left hand went over - like, caught myself on the toilet bowl. I feel [sic] forwards, and I’m not sure if I’ve twisted when I fell or what.  All I know is that I fell and I caught myself.’

[8] The appellant said that he had been chastised on a number of occasions by his superior, Roger Blennerhassett for not answering his work mobile telephone. He said that he treated the job as if it was his name of [sic] the side of the trucks. He explained to the Commission that it was his obligation to answer the mobile telephone as soon as it rung, to ensure everything was happening, to keep the trucks on the road and to make sure everyone was safe. When asked why he felt he needed to answer the work phone every time it rang the appellant said ‘Driver safety and the public safety. If a truck’s broken down in the middle of a road or on a blind corner or something, I don’t want to be responsible for - I want to do everything I can to make sure it’s safe as soon as possible’.

[9] Around 4.00 am the following morning, the appellant woke in order to prepare to go to work and found that he had excruciating pain in his lower back radiating down his right leg. He said that he felt ‘… like I was hooked up to an electric fence or an electric current, and every time I moved it was like earthing it out, letting the current flow through me.’”

4. [4]
   At the hearing of this appeal Mr Gray, who appeared for the appellant, said that while Mr Ziebarth was encouraged to take telephone calls, he was not encouraged to take those at all costs no matter what was occurring at the time. Mr Gray said that that was the issue in this case. He further submitted that the activity that was encouraged or authorised by the employer did not extend to Mr Ziebarth having to hurry out of the shower with wet feet and slip on a tile which was the cause of his injuries. It was the appellant’s case that Mr Ziebarth should not have hurried to answer the phone. In order to consider the submissions it is necessary to revisit the tests which are applicable under the Act in cases of this nature.

The legislation

5. [5]
   Section 32(1)(a) of the Act defines injury to be a “personal injury arising out of, or in the course of, employment if – for an injury other than a psychiatric or psychological disorder – the employment is a significant contributing factor to the injury”.

The grounds of appeal

6. [6]
   The appellant relies on two grounds:

   1. (a)
      The Deputy President erred in adopting a “broad interpretation” of the activity which resulted in the injury contrary to the decision in Campbell v Australian Leisure & Hospitality Group Pty Ltd;^[1] and
   2. (b)
      The Deputy President failed to give adequate reasons.

The test to be applied

7. [7]
   In Campbell the relevant principles were summarised in this way:

“[9] The concepts contained within the Act relating to whether or not an injury arises out of or in the course of employment and whether or not employment is a significant contributing factor have been considered in a number of cases which deal with those concepts contained in similar but not identical legislation. 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.

[10] For the purposes of this appeal the following principles enunciated in PVYW are relevant:

1. (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.

2. (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.

3. (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.

4. (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.

5. (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.” (footnotes omitted)

8. [8]
   In Comcare v PVYW,^[2] the High Court revisited the decision in Hatzimanolis v ANI Corporation Limited^[3] where, in the majority judgment, French CJ, Hayne, Crennan and Kiefel JJ said:

“34. It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer's liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee’s employment. It did so by characterising the interval by reference to the employer’s inducement or encouragement. The employer’s liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer’s liability beyond that.

35. Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that 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.

36. Moreover, it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstances in which it occurred and the employment itself. It achieves that connection by the fact of the employer’s inducement or encouragement. Thus, 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.” (footnotes omitted)

9. [9]
   It should be observed that in PVYW, as in Hatzimanolis, the Court was concerned with an injury which occurred in an interval in a period of work during the course of employment. For example, in Hatzimanolis, the worker was engaged to work about 10 hours a day for six days a week with the possibility that work might be required on a Sunday. In the course of the third week of employment, the worker was not required to work on Sunday and went with some other employees on a trip to Wittenoom Gorge. He was injured during that excursion. In PVYW, the worker was injured that night in a motel during an interval in a period of work. In the latter case, the majority said that “for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer.”^[4]
10. [10]
    In the Federal Court decision of Commonwealth Bank of Australia v Wark,^[5] O'Loughlin J considered a situation which has some similarities to this case. Ms Wark was required, under her contract of employment, to be “on call” at various times in order that she might be able to perform work associated with automatic teller machines. On the day in question Ms Wark was called out to attend to a faulty machine, she performed the necessary work, and returned home. Shortly after returning home she cut her finger when attempting to remove a plastic cap from a bottle. The relevant Commonwealth legislation defined an injury as being, inter alia, “a physical or mental injury arising out of, or in the course of, the employee’s employment.” There was no requirement that the employment be a significant contributing factor or to the injury. O'Loughlin J referred to Hatzimanolis, Comcare v McCallum^[6] and Inverell Shire Council v Lewis^[7] and said:^[8]

“The striking feature of these three cases is that, in each of them, the injury occurred whilst the worker was engaged in an activity that was predominantly, social or domestic; furthermore, in each case, the relevant activity was one which would, more often than not, be conducted in a personal, non-work related, environment. A trip in the country on a Sunday afternoon, a party with friends at the caravan home of another and a person's daily toiletry do not immediately spring to mind as a work related activities. But in Hatzimanolis Mason CJ, Deane, Dawson and McHugh JJ said (at 482):

“... the rational development of this area of the law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment...”

Their Honours then proceeded to enunciate the reformulation in these terms (at 483):

“... 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.”

In my opinion, this passage from Hatzimanolis provides the answer to this case. Ms Wark was required by her employer to hold herself in readiness throughout that Saturday. The submission by counsel for the Bank that the evidence did not warrant such a finding by the Tribunal is contradicted by the agreed statement of facts. As a consequence of accepting her roster, Ms Wark was paid the award daily allowance and, in addition, because she had been called out, she was also paid a further four hours at overtime rates. Her acceptance of the roster and her entitlement to the allowance and the overtime wages meant that there was the requisite temporal connection between her injury and her employment. Although she was not injured because of an actual work-related event, she was nevertheless injured at a time when there was an association with her employment in the way in which the workers in Hatzimanolis, Comcare v McCallum and Inverell Shire Council v Lewis had an association with their respective employments when they were injured. It would not be correct to regard Ms Wark as having engaged in a discrete period of work during the time when she was specifically involved in attending to the faulty ATM; the whole of her rostered hours on that Saturday are to be viewed as one overall period or episode of work and her injury occurred in an interval within that overall period.

There are, as the High Court explained in Hatzimanolis's case, limitations and constraints that must be observed. At 482, in their joint judgment, Mason CJ, Deane, Dawson and McHugh JJ emphasised that it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. They went on to explain that the difference between a compensable and a

“non- compensable injury sustained by an ordinary employee after the day's work had ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees.””

(emphasis added)

11. [11]
    Mr Ziebarth was not, it appears, paid any allowance for him remaining on call. In any event, that is not relevant to the issue in this case. Like Ms Wark, Mr Ziebarth was injured during an interval between periods of employment and, again like Ms Wark, he was injured at the time when there was an association with his employment. If anything, the association is stronger in Mr Ziebarth’s case.
12. [12]
    In any case, as was observed in Campbell, the test provided for in PVYW is in two parts:

    1. (a)
       What was the activity being engaged in at the time of the injury? and
    2. (b)
       Did the employer induce or encourage the employee to engage in that activity?
13. [13]
    This was the test applied by the Deputy President in his reasons.

Findings of the Deputy President

14. [14]
    In dealing with the first part of the test the Deputy President said:

“[32] …, the activity to be considered is the answering of the work mobile telephone. It is not, as submitted by the regulator, the running. As was noted in paragraph [7] above, the evidence of the appellant was that he moved out of the shower through the gap and into the glass and headed towards the door before falling forward. He was anxious to answer the phone before it went to message bank and he was hurrying to do so. But the evidence was not that he was running at the time the injury occurred.” (emphasis added)

15. [15]
    So far as the second part of the test was concerned the Deputy President said that the question to be considered was: “did the appellant’s employer induce or encourage him to engage in the activity that he did, namely, to answer the work mobile telephone?”^[9] He then said:

“[34] It is accepted between the parties, as set-out in the Statement of Agreed Facts, that it was a term of the appellant's Contract of Employment with his employer that he make himself available to be on call from time to time; that he was supplied with a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him whilst he was on call; and at all material times the appellant was in fact on-call.

[35] There is little doubt in my mind that on the evidence before the Commission, the appellant was induced or encouraged to engage in the activity that he did. As is set out in paragraph [34], it was an activity within the scope of what his employer induced or encouraged him to engage. Having answered the question in the affirmative, it must therefore follow that the injury sustained by the appellant has occurred in the course of his employment.”

The appellant’s case

16. [16]
    The appellant argues that the Deputy President erred in two ways. First, it is said that he failed to apply the reasoning in Campbell by not applying a narrow interpretation of the “activity” which led to the injury. Secondly, while the appellant acknowledges that Mr Ziebarth was encouraged by his employer to answer the telephone, the Deputy President erred by finding that a compensable injury was sustained in these particular circumstances.
17. [17]
    The first observation which may be made is that, in its argument, the appellant is seeking to put an unnecessary gloss on the well-accepted test. It is not always a matter of applying a “narrow” or “wide” interpretation. In Campbell the injurious activity being engaged in was diving into the water. That case concerned the issues which arise when an employee has been required to be present at a place where an activity is undertaken. Ms Campbell was injured when she engaged in an action which the employer had neither induced nor encouraged.
18. [18]
    What the appellant seeks to do in this case is to exclude from the act of answering the telephone the necessary physical activity which must occur in order that it can be answered. In order to do that, it is argued that Mr Ziebarth should have not hurried or should not have answered the telephone at all. It was put this way in the appellant’s written submissions: “… the only reason that the event occurred was because he was hurrying and that his feet were wet. Those have nothing to do with the act of answering the phone.”^[10] That argument is not well-founded. This is not the occasion to engage in a minute examination of the processes necessary for the answering of a telephone. It is sufficient to say that, in order to answer a telephone, an employee has to get to the telephone. Mr Ziebarth contended that he could not ignore the telephone on the ground that it might concern a safety issue concerning a truck. He also said that he had been criticised by his employer for not having acted promptly in the past. This criticism was denied by the employer.
19. [19]
    The appellant accepted that the employee was invested with some discretion about answering the telephone. It would seem consistent with his duties that he would not answer the telephone when it was unlawful to do so, for example, if he was driving a car with no “hands-free” facility. The gist of the appellant’s case, though, is that it did not encourage or require Mr Ziebarth to hurry from the shower to answer the telephone. Of course it did not. But that is not the point. The test is not: did the employer encourage the employee to engage in conduct which might be dangerous? The argument of the appellant, if accepted, would neutralise the workers’ compensation regime.  One of the main purposes of the Act is to provide compensation for injuries sustained by workers in their employment.^[11] Workers are compensated even when the injury is due, in some degree, to inattention on their own part. The circumstances considered in Wark demonstrate that.

Conclusion on the first ground

20. [20]
    The appellant has not demonstrated that the Deputy President erred either in his assessment of the facts or in his application of the appropriate test to them.

Were the reasons adequate?

21. [21]
    The appellant points to [8] of the Deputy President’s reasons where he said:

“The appellant said that he had been chastised on a number of occasions by his superior, Roger Blennerhassett for not answering his work mobile telephone. He said that he treated the job as if it was his name of [sic] the side of the trucks. He explained to the Commission that it was his obligation to answer the mobile telephone as soon as it rung, to ensure everything was happening, to keep the trucks on the road and to make sure everyone was safe. When asked why he felt he needed to answer the work phone every time it rang the appellant said ‘Driver safety and the public safety. If a truck’s broken down in the middle of a road or on a blind corner or something, I don’t want to be responsible for - I want to do everything I can to make sure it’s safe as soon as possible’.”

22. [22]
    It was submitted that there had been a failure to address Mr Blennerhasset’s evidence about the matters referred to in [8] of the reasons and that no finding had been made about Mr Ziebarth’s claim that he had been chastised. In making those omissions, it was argued, the Deputy President failed to adequately disclose his reasoning.
23. [23]
    The principles which should be applied when considering whether a member of the Commission has adequately explained the reasons for a decision were considered in some detail in Abbott v Blackwood^[12] and I will not repeat them at length here. The basic question which must be asked when a submission of this nature is made is: has a material issue not been addressed or has material evidence been overlooked?^[13] It is not just whether an issue or evidence has not been attended to, but whether a material issue or material evidence has been overlooked. In determining the materiality one looks to the whole of the reasons and how the decision maker has applied the relevant standard or test. In this case, it was unnecessary to make a finding about chastisement because the approach taken by the Deputy President did not require that. The mere fact that there is a difference in evidence about a particular matter does not make it material.

Conclusion on the second ground

24. [24]
    The appellant has not demonstrated that the Deputy President failed to provide adequate reasons.

Order

25. [25]
    The appeal is dismissed.