Sarkaria v Workers' Compensation Regulator
[2017] QIRC 96
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- Sarkaria v Workers' Compensation Regulator[2017] QIRC 96
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Sarkaria v Workers' Compensation Regulator[2017] QIRC 96
Sarkaria v Workers' Compensation Regulator[2017] QIRC 96
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sarkaria v Workers' Compensation Regulator [2017] QIRC 96 |
PARTIES: | Sarkaria, Mandep v Workers' Compensation Regulator |
CASE NO: | WC/2017/48 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 18 October 2017 |
HEARING DATES: | 31 August 2017 5 and 6 October 2017 |
HEARD AT: | Brisbane |
MEMBER: | Vice President Linnane |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether the worker's injury was compensable – whether the worker's injury arose out of or in the course of her employment – whether the worker's employment was a significant contributing factor to the injury – whether the injury occurred while the worker was at or after she attended at her place of employment – whether the worker was temporarily absent from her place of employment – whether the injury occurred during an ordinary recess |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 and s 34(1) Blackwood v Civeo Pty Ltd and Anor [2016] ICQ 001 Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 016 Comcare v PVYW [2013] 250 CLR 246 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 FAI General Insurance Company Limited v The University of Queensland & Anor [1997] QCA 259 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 Nevien Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Robert William Avis and WorkCover Queensland [2000] 165 GQIG 788 Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service) [2014] ICQ 017 Weaver v Tredegar Iron & Coal Co Limited (1940) All ER 157, 164 WorkCover Queensland v Curragh Queensland Mining Pty Ltd [2003] QGIG 6 WorkCover Queensland v Dreadon (1999) 161 QGIG 775 |
APPEARANCES: | Mr M. Forbes, Counsel instructed by Quinn & Scattini Lawyers for the Appellant. Mr P. Rashleigh, Counsel directly instructed by the Workers' Compensation Regulator. |
Decision
- [1]Mandep Sarkaria (Appellant) lodged a claim for workers' compensation on 3 November 2016 contending that she sustained an injury on 1 November 2016 as a result of a fall from a fixed ladder approximately three metres in height. The injury sustained by the Appellant resulting from the fall was a fracture to her right lower leg.
- [2]At the relevant time the Appellant was employed by Mojjos Pty Ltd which operated the McDonald's Restaurant at Richlands (Restaurant). David Robinson, a director of Mojjos Pty Ltd, effectively operated the Restaurant. Her fall from the ladder on 1 November 2016 occurred at the Restaurant.
- [3]WorkCover Queensland (WorkCover), in a decision dated 9 November 2016, rejected the Appellant's claim for compensation on the basis that the Appellant's employment was merely the setting where she had injured herself and the injury was not associated with her duties at the Restaurant. WorkCover was thus satisfied that the Appellant had not sustained an injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act).
- [4]The Appellant then sought review of that WorkCover decision in an application received by the Workers' Compensation Regulator (Regulator) on 19 December 2016. In a decision dated 23 February 2017 the Regulator confirmed the decision of WorkCover to reject the Appellant's application for compensation. It is against that decision of the Regulator that the Appellant filed a Notice of Appeal on 23 March 2017 in the Industrial Registry.
Issue for Determination
- [5]The Regulator conceded that the Appellant was a "worker" for the purposes of the Act. Further, the Regulator conceded that the Appellant sustained a personal injury of a grade 2 compound comminuted plafond fracture to her right fibula on 1 November 2016.
[6] The issues for determination in this appeal are:
- (i)whether the Appellant's injury arose out of, or in the course of, her employment; and
- (ii)whether her employment was a significant contributing factor to the injury sustained.
[7] In any determination of whether the injury to the Appellant arose out, of or in the course of, the Appellant's employment, the Appellant sought to also rely upon the provisions of s 34 of the Act. In that regard the injury will arise out of, or in the course of, the Appellant’s employment:
- (i)if the injury sustained by the Appellant happened on a day on which she has attended at the place of employment as required under the terms of her employment; and
- (ii)the Appellant was at her place of employment and engaged in an activity for, or in connection with, the employer's trade of business; or
the Appellant was away from her place of employment and she was in the course of her employment; or
the Appellant was temporarily absent from her place of employment during an ordinary recess and the event was not due to the Appellant voluntarily subjecting herself to an abnormal risk of injury during the recess. If this element is proved then employment need not be a contributing factor to the injury.
Relevant Legislation
[8] Section 32 of the Act relevantly provides as follows:
“32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if –
- (a)for an injury other than a psychiatric or psychological disorder – the employment is a significant contributing factor to the injury; or
- (b)…"
[9] Section 34 of the Act provides as follows:
"34 Injury while at or after worker attends place of employment
- (1)An injury to a worker is taken to arise out of, or in the course of, the worker's employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker's employment –
- (a)while the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer's trade or business; or
- (b)while the worker is away from the place of employment in the course of the worker's employment; or
- (c)while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.
- (2)For subsection (1)(c), employment need not be a contributing factor to the injury."
Onus of Proof
[10] The hearing of the appeal was conducted as a hearing de novo. The Appellant bears the onus of proving, on the balance of probabilities, that she has an "injury" within the meaning of the Act. Whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.
Evidence
[11] Statement of Agreed Facts: A Statement of Agreed Facts was provided at the outset of this hearing. That Statement provided as follows:
"1. The Appellant is a woman born on 27 July 1973.
2. As at 1 November 2016 the Appellant was an employee of Mojjos Pty Ltd ("the employer") which operated the Richlands McDonalds from the premises at 10 Government Road, Richlands (the "premises").
3. The Appellant was a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003.
4. As at 1 November 2016 ("the date of the incident") the premises had a 3m ladder ("the ladder") inside the storeroom of the premises, and the ladder gave access to the roof of the premises.
5. At about 8:50pm on the date of the incident, the Appellant attended at the premises, as per the employer's policy, prior to the commencement of her work duties scheduled to commence at 9:00pm.
6. The Appellant sustained an injury as a result of the incident, being a broken right lower leg.
7. After the Appellant's incident, a sign was installed near the ladder restricting access to the roof, and staff were advised not to access the roof by the ladder."
[12] The Regulator sought to clarify its position with respect to the Statement of Agreed Facts in relation to paragraph 7. The Regulator agreed that a sign was installed near the ladder following the incident on 1 November 2017 but contends that this was a sign additional to a sign that was on the ladder at all relevant times (i.e. on 1 November 2016). The Regulator's position is that the sign that was placed near the ladder following the incident was a second sign.
[13] The Appellant relied upon the evidence of the following witnesses:
- the Appellant;
- Mr Sam Colless (a fellow worker at the Restaurant at the time of the incident); and
- Ms Laura Harris (a fellow worker at the Restaurant who had left the employment prior to the incident on 1 November 2016).
The Regulator relied upon the evidence of Mr David Robinson, who through Mojjos Pty Ltd, was the franchisee of the Restaurant at the relevant time. Mr Robinson and Mojjos Pty Ltd ceased to be the franchisee of the Restaurant in April 2017.
[14] Appellant's Evidence: The Appellant is a forty-four year old woman who, at the relevant time, was employed as a crew member at the Restaurant. Prior to the incident on 1 November 2016 the Appellant had been employed as a crew member for approximately six years. Her evidence as to the duties she performed as a crew member was “general cleaning of the store, handing out food, sometimes preparing food and generally getting the store ready for the next day”. In addition, she performed certain cleaning duties with other staff on the rooftop every couple of months on nominated cleaning nights.
[15] The Appellant performed her duties at the Restaurant generally during the hours of 9:00pm to 6:00am, five nights a week. The inside of the Restaurant was open to the public until 11:00pm. During the period 9:00pm to 11:00pm the Appellant generally performed duties on the front counter and in the drive-through window. Once the Restaurant closed to the public, the Appellant mainly performed cleaning duties and duties associated with getting the store ready for the following day.
[16] The Appellant's evidence is that when she arrived at the Restaurant car park to commence her shift on 1 November 2016 she thought she saw her husband's motor vehicle in the car park. A Temporary Protection Order under the Domestic and Family Violence Protection Act 2012 was in operation which prevented her husband from being in the Restaurant car park. The Regulator conceded that the Temporary Protection Order protected the Appellant in such circumstances.
[17] The person in charge of the Restaurant on the evening of 1 November 2017 was Tate Kurten. Mr Kurten was not called as a witness.
[18] The Appellant's evidence was that when she entered the Restaurant at about 8:50pm on 1 November 2016 she was "flustered and anxious" as a result of the possibility of her husband being in the car park. She stated that she just wanted to get inside the door of the store because her husband was not allowed in the store. The Appellant stated that she walked through the restaurant area of the store and then past the customer service area, then into the back-corridor area and placed her bag in the crew room. She then went back out into the restaurant area to speak with Mr Colless who was working at the time. The Appellant said she then went back into the crew room and "got a smoke" and went into the Corral. The door to the Corral automatically locks behind the person entering the Corral.
[19] The Appellant said that another crew member was in the Corral at the time throwing rubbish in a bin. The Appellant said that she asked this crew member to leave the door open to the Corral as she was going up on the roof. This crew member was not called as a witness.
[20] The Appellant said that she then pressed the buzzer to open the trapdoor in the Corral and went up the three metre ladder and onto the rooftop of the Corral. She then climbed the three stairs to the rooftop of the restaurant itself thereby discovering that it was not her husband in the motor vehicle in the car park. The Appellant stated that she then calmed down and went down the three steps to the rooftop of the Corral where she sat down and had a smoke for about five minutes.
[21] Under cross-examination the Appellant reluctantly agreed that the rooftop to the Corral was not a designated smoking area. She continually stated however that no person had told her that she could not smoke in the area.
[22] The Appellant then got up, touched the side of the ledge of the ladder and went to go down the ladder. It was at this time that she fell injuring herself. The Appellant has not returned to work since sustaining the injury on 1 November 2016. The Appellant agreed that shortly after the fall she said something like "I’m going to be in trouble with David, aren’t I". Her reasoning for making the comment was that she had been requested to go on that extra shift in order to help clean the premises and thought that Mr Robinson would be unhappy with her being on the roof.
[23] The Appellant was quite clear in her evidence that she would still have gone up to the rooftop of the Corral prior to the commencement of her shift to have a smoke regardless of whether she was concerned about her husband being in the vicinity. The Appellant also stated that she got permission from managers to go up on the rooftop to smoke. The Appellant did not call any manager as a witness to support this statement.
[24] The Regulator introduced footage of a CCTV camera which identified the Appellant walking through the door of the Restaurant about ten minutes prior to her scheduled shift start time. In that footage the Appellant did not give the appearance of being "flustered or anxious". The CCTV footage showed her calmly walking through the customer dining area and then into the staff area of the Restaurant.
[25] That CCTV footage showed the Appellant obtain a cigarette from her belongings and then go towards the back of the Restaurant and through a door. That door led to the Corral. I will deal with the Corral later in this decision.
[26] The CCTV footage did not show the Appellant speaking with a "manager" prior to her going through the Corral. The person that the Appellant stated she spoke to in the Corral was not a "manager" but rather a crew member. Under cross-examination, the Appellant stated that on 1 November 2016 she did not ask any manager for permission to go up on the roof and have a smoke. She explained the reason for this was because the managers on duty on that shift knew that she used the rooftop to smoke.
[27] Mr Colless' Evidence: I did not find Mr Colless to be a credible witness. He agreed under cross-examination that he was "taken advantage of by this employer", that "he did not particularly like the employer" and that "he had an axe to grind with the employer". He further stated that the Appellant was a "good friend of his" but then went on under cross-examination to agree that he was giving evidence in support of the Appellant because he had an axe to grind with the employer.
[28] Various other aspects of Mr Colless' evidence confirmed my view of his creditworthiness as a witness in this proceeding e.g.
- evidence concerning the extensive hours he worked and his complaint that he was only paid for a certain number of hours per shift;
- the hourly rate of remuneration he received whilst working at the Restaurant;
- that he was performing the duties of a manager but not being employed as a manager because he was only seventeen years of age;
- his challenge to Mr Rashleigh, Counsel for the Regulator, that if all the Regulator had to go on was his statement that "a sign" was put up on or near the ladder after the incident rather than him using the term "signage" and the manner in which he challenged Mr Rashleigh. Whilst Mr Colless was stopped before completing this evidence the conclusion he sought to achieve was apparent; and
- his attempts to state the law on smoking in Queensland and the manner in which he gave that evidence.
The abovementioned evidence generally was not responsive to questions asked of him and did not enhance my view of his credibility as a witness in this proceeding.
[29] Mr Colless confirmed that the only designated smoking area was out on the footpath and agreed that he took it upon himself to go up on the roof to smoke. He said that he did not smoke in the Corral and agreed that if you smoked in the Corral you could cause a fire. The Appellant had stated in evidence that whilst she was employed at the Restaurant staff generally smoked in the Corral or upstairs on the roof. Mr Colless was obviously not one of those employees who smoked in the Corral.
[30] In examination-in-chief, Mr Colless said that after the incident on 1 November 2016 Mr Robinson told staff at a manager’s meeting that there was a restriction on accessing the roof. He further stated that "all of a sudden, the sign went up on the ladder, and everyone was informed they couldn’t go up there". He was clear that "the sign" went up.
[31] Mr Colless said that, prior to 1 November 2016, there was no sign on the ladder in the Corral that restricted access to the rooftop. He said that he would access the rooftop to smoke although he did not do this in the company of any manager. He also would go up to the rooftop to perform duties i.e. to clean. That work he performed on the rooftop was a part of planned maintenance at the Restaurant.
[32] Under cross-examination, Mr Colless disputed that there was a sign on the ladder prior to 1 November 2016. He had earlier given evidence of a singular sign being placed on, or near, the ladder after 1 November 2016. In the photograph (Exhibit 1) of the area there are two blue signs on or near the ladder. Mr Colless then contended that he had previously said that "signage" was placed in the area after 1 November 2016. The term "signage" had been used by Mr Forbes, Counsel for the Appellant, when asking Mr Colless whether there was any signage either on the ladder or near the ladder that restricted access to the rooftop prior to 1 November 2016 and his answer was "No, there wasn't". Mr Colless however never mentioned the word "signage" prior to this aspect of cross-examination and particularly he did not refer to the word "signage" when describing what happened after 1 November 2016.
[33] Further, Mr Colless said that he didn’t remember there being two signs on the ladder when he was working there. Mr Colless ceased working at the Restaurant in January 2017. According to the evidence, the photograph (Exhibit 1) was taken after the incident on 1 November 2016 and prior to it being texted to the Appellant on 3 November 2016. Later, Mr Colless changed his evidence saying that there were two signs put up after the incident on 1 November 2016 i.e. the two pieces of blue laminated paper.
[34] It was Mr Colless' evidence that staff could not smoke in their cars. This was contrary to the Appellant’s and Mr Robinson’s evidence.
[35] As far as Mr Colless was concerned the Corral did not include the rooftop.
[36] Ms Harris' Evidence: Ms Laura Harris also gave evidence for the Appellant. She worked at the Restaurant from April 2015 to April 2016 as a crew member. She worked only night shifts. On a week night there would be three people working, including herself, and on a weekend it would be four people until 2:00am and then three people until 6:00am, including herself.
[37] Ms Harris was not a smoker. She was aware of the ladder in the Corral. When she commenced work at the Restaurant she received training in how to use the equipment and how to serve customers. The health and safety training, according to Ms Harris, was mostly done online. She was given a log-in to the website and she would complete the modules online. From memory she did not receive any instruction regarding accessing or not accessing the rooftop.
[38] Ms Harris did not however access the rooftop during her employment but observed others, including the Appellant, using the rooftop on a few occasions. This happened about every three months or so and she probably saw it happen a handful of times during her employment. Ms Harris agreed that once a month the roof was accessed for cleaning and she witnessed the staff and management access the roof by the ladder for that purpose - it was always staff and management.
[39] To her knowledge the rooftop was not a designated smoking area. There was no designated smoking area onsite.
[40] Ms Harris said in examination-in-chief that she could not recall seeing any signage on the ladder. Under cross-examination, she agreed that there could have been one sign on the ladder when she was working at the Restaurant. She said that she did not go out to the Corral often, she never used the ladder and never went up on the roof so she stated that signage on the ladder was not in her "line of sight". She would not deny that one of the signs was present on the ladder when she worked at the Restaurant.
[41] Mr Robinson's Evidence: Mr Robinson gave evidence about the layout of the Restaurant, the Corral and the rooftop of the Restaurant. He said there was no designated smoking area within the building. Smoking was restricted to areas away from the dining room, playground area and party room area. Staff could follow the pedestrian crossing outside the Restaurant and go to the edge of the car park and that was the area designated for smoking. This was about 25 to 30 metres away from the Restaurant building. Other staff would sit in their cars and smoke. There was absolutely no smoking permitted on the rooftop according to Mr Robinson.
[42] There was a policy that staff attend at the Restaurant ten to fifteen minutes prior to the commencement of a shift. There was a crew room where staff could rest and have their meal breaks. The crew room contained a television, lounge chairs and computers for staff to use. Staff could also use the dining room for breaks provided they wore a cover shirt so as not to be identified as a McDonald's employee. Mr Robinson confirmed that staff could not smoke in either the crew room or the dining room.
[43] As at 1 November 2016, Mr Robinson/Mojjos Pty Ltd held the franchise at four McDonald restaurants and thus only spent approximately twelve hours per week at the Restaurant. He indicated that he would only have become aware of someone accessing the rooftop of the Corral to smoke if someone actually told him about such a practice.
[44] There was no need to allow access to the rooftop other than for cleaning. Those specifically trained to do the maintenance on the roof and the managers who were involved in "the preventive maintenance part of the business" were the ones shown how to use the ladder and what to do up on the rooftop. There was no need for the Appellant to access the rooftop other than when performing cleaning duties and then only if authorised and accompanied by a manager.
[45] Mr Robinson said that he had never noticed any non-authorised staff member accessing the roof from the ladder whilst he was at the Restaurant. The Appellant in her evidence stated that she had not gone on the rooftop to smoke when Mr Robinson was in attendance at the Restaurant.
Specific Factual Issues
[46] Corral: The Corral is a covered area with a roof. It stores two three-cubic metre bins of rubbish and a bulk container of waste oil. There are two gates that open from the Corral so that contractors can come and collect the rubbish. It is separate from the Restaurant but adjoins the Restaurant. The rubbish from operating the Restaurant is kept in the Corral. A three metre ladder is also kept in the Corral which leads to a trap door to enable access to the rooftop. That trap door is made of metal and is on an electrically controlled strut. The Corral also acts as a storeroom for some Restaurant stores.
[47] Staff enter the Corral during the course of their employment for the following reasons:
- to throw out rubbish in the big rubbish bins;
- to throw out empty milk bottles in the bins; and
- to collect certain stores.
[48] The Corral had two rather large McDonald's signs containing a "no smoking" insignia with the following words clearly identified in Exhibit 2 in the proceeding:
"NO SMOKING
IN CORRAL
Smoking in the corral is
STRICTLY PROHIBITED
and may attract
disciplinary action, up to
and including termination
of employment"
[49] The Appellant in her evidence stated that she smoked in the Corral at least five times per shift. The Appellant said it was a non-smoking area but that she just ignored the signs that were clearly visible to all who entered the Corral. The Appellant further agreed that smoking did not form part of her duties as a crew member.
[50] The Appellant said that she had an arrangement with her managers whereby, instead of having a half-hour break during her shift, she would take that time in five small breaks so that she could have a smoke on five separate occasions during a shift. This did not include the smoke that the Appellant had prior to commencing her shift, nor the smoke she had after her shift had finished. Her evidence is that she smoked in the Corral at least five time per shift despite the clear warning signs prohibiting smoking in the area.
[51] The Appellant's evidence was that she thought it was okay to smoke in the Corral because she asked the managers. She agreed that she ignored the non-smoking signs for her own purposes i.e. to have a smoke. Her response was "but we had the manager’s permission". She agreed that smoking in the Corral could have burnt the building down. She ignored those signs because she wanted a cigarette.
[52] The Appellant's evidence was that she did not seek any manager's permission to go up on the rooftop to smoke on the night of the incident suggesting that the managers on duty that evening knew that she used the rooftop to have a smoke. No manager was called by the Appellant to confirm any agreement made with her to smoke in the Corral, to break her half-hour ordinary recess in the shift into five separate occasions per shift, to smoke during those five separate occasions per shift, to access the rooftop to smoke prior to commencing her shift or to access the rooftop to smoke at the end of her shift.
[53] The Corral has rubbish, cardboard and waste oil contained therein. Smoking in the Corral put the smoker and the whole store at risk of fire. Mr Robinson said that he never saw anyone smoking in the Corral. As he would regularly see staff sitting in their cars smoking, he never considered that staff were smoking on the rooftop to the Corral or within the Corral.
[54] On the rooftop of the Restaurant area is the air-conditioning plant, a very large hot water system and several exhaust units from over the grill in the kitchen. There were large fan units over flus from the grill and over the fryers. There was also smaller ventilators for the toilets. Access to the rooftop was required for tradespersons to go up and do quarterly and monthly maintenance on the equipment. Internally the Restaurant would also have someone charged with the job of doing routine cleaning of the exhaust fans.
[55] What is encompassed by the Corral was an issue in this proceeding. The Appellant stated that the Corral did not include the rooftop and, as there were no "no-smoking" signs on the rooftop of the Corral, the Appellant was entitled to smoke in the area.
[56] I find that the Corral was a room separate from, but adjoining, the Restaurant. It was used by staff throughout the course of their employment at the Restaurant. The Corral included the roof and the ladder that was located in the Corral.
[57] It was the Appellant's evidence that she was required, as part of her duties, to access the rooftop of the Corral via the ladder to perform cleaning duties.
[58] Signage on the ladder: Another disputed issue in the proceeding was whether there was any signage on the ladder concerning access to the rooftop as at 1 November 2016. The Appellant's evidence was that there was no such signage and she received no direction or instruction concerning access to the rooftop during her employment at the Restaurant.
[59] The Appellant's evidence was that on 3 November 2016 she received, via text message, the photograph which is Exhibit 1 in the proceeding. She received the text from the security guard at the Restaurant. I received no evidence as to the wording on the blue signs in that photograph which is Exhibit 1. All I am able to identify from the photograph is the word "warning" on the lower of the two signs. The Appellant herself has not worked at the Restaurant since 1 November 2016 but she was able to advise that the signs restricted access to the rooftop. If the Appellant had not, prior to 1 November 2016, seen the words printed on the blue sign then an explanation as to how she came to know that the sign restricted access to the rooftop was needed. I was given no explanation as to how the Appellant came to know that the blue signs restricted access to the rooftop if there was no blue sign on, or near, the ladder as at 1 November 2016.
[60] I have dealt with Mr Colless' evidence on the blue signs earlier in this decision. Ms Harris was unable to give any clear evidence on this issue.
[61] Mr Robinson's evidence was that the lower of the two blue signs in Exhibit 1 was on, or near, the ladder prior to the incident on 1 November 2016. He said that following the incident he gave instructions to the team at the Restaurant to place an additional sign on, or near, the ladder.
[62] Evidence from the security guard who took the photograph would have been of some assistance in this regard. The security guard may have sent the photograph to show that two signs were on, or near, the ladder since the incident. He may have sent the photograph to show that signs were on, or near, the ladder following the incident.
[63] In all the circumstances the Appellant has not provided me with sufficient evidence to enable me to form the view that there was no warning sign on the ladder as at the time of the incident on 1 November 2016. It seems that the blue signs do indicate a warning. What the warning was about can only be gleaned from the evidence of Mr Colless and Mr Robinson i.e. that the signs restricted access to the rooftop. Given the evidence before me I find, on the balance of probabilities, that one warning sign was present on the ladder as at 1 November 2016.
Arising out of, or in the course of, employment
[64] As mentioned previously the issue for determination is, whether or not the Appellant's injury arose out of, or was in the course of, her employment at the Restaurant and whether or not her employment at the Restaurant was a significant contributing factor to her injury: see s. 32(1) of the Act. In her Amended Statement of Facts and Contentions the Appellant places reliance on s 34(1)(c) of the Act with respect to the issue of arising out of, or in the course of, her employment.
[65] For s 34(1)(c) of the Act to assist the Appellant on the issue of arising out of, or in the course of, her employment, the Appellant must prove the following elements:
- that she was at her place of employment as required by the terms of her employment;
- that she was temporarily absent from the place of her employment during an ordinary recess; and
- that the event was not due to her voluntarily subjecting herself to an abnormal risk of injury during the recess.
[66] Place of Employment: The term "place of employment" is defined in schedule 6 of the Act to mean:
"the premises, works, plant, or place for the time being occupied by, or under the control or management of, the employer by whom a worker concerned is employed, and in, on, at, or in connection with which the worker was working when the worker sustained injury."
[67] It was an agreed fact that the Appellant attended the Restaurant at about 8:50pm on the day of the incident as per the employer's policy. Her shift was to commence at 9:00pm. Further, Mr Robinson stated that it was a McDonald's policy that staff attend at the Restaurant ten to fifteen minutes prior to the commencement of their shift. On 1 November 2016 the injury to the Appellant occurred within ten minutes prior to her commencing her shift on that evening.
[68] I am thus satisfied that the Appellant was at her "place of employment" as required by the terms of her employment when she was injured on 1 November 2016.
[69] Was the Appellant temporarily absent from her place of employment: In this regard the Appellant relies upon the definition of "place of employment" provided by Moynihan J in WorkCover Queensland v Dreadon[1] where it was said:
"To argue that the 'place of employment' relates to the physical and geographical boundaries of the area of land or property that is under the control of the employer is flawed. The definition has two elements. The 'place of employment' is:-
- (1)The premises, works, plant or place for the time being occupied by, or under the control or management of, the employer by whom a worker is employed; and
- (2)The premises, works, plant or place in, on, at, or in connection with which the worker was working when the worker sustained injury.
The second requirement of the definition indicates that not every piece of land or property occupied or under the control or management of the employer is necessarily every employees 'place of employment'. There must be a connection between the land or property and the work duties of the employee. Consequently, the definition must be applied to each case on its own facts. Whether there is a connection is relative to the nature of employment. The car park where the injury occurred is conceded by the parties to be under the control of the employer. However it can not be said that the car park is a place in connection with which the worker was working when he was injured. The respondent was employed by Australian Meat Holdings Industry as a knife hand. At the time of the injury, the respondent had completed his work for the day and had walked to his car in the car park in order to travel home. The car park is merely a facility supplied by the employer for the use of the employees. On a different set of facts, it may be that the car park could be characterised as the 'place of employment'. For example if an employee had duties which included maintenance of the car park."
[70] The Appellant further relied upon the decision of O'Connor DP in Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service)[2] where it was decided that the worker's "place of employment" did not include the toilet facilities. In that case it was stated:
"[21] The Commissioner was entitled, in considering where the worker ordinarily undertook her work, to conclude that the toilet facilities, whilst still within the same building and under the control of the employer, was not an area in connection with which the worker was working when the injury occurred and consequently not the 'place of employment'.
[22] The agreed statement of facts included at paragraph 13 the following:
'At approximately 1:30pm, in the course of her rounds, Ms Foster went to the toilet facilities located in Surgical Ward 12. Those toilet facilities were located in the nurses' staffroom and were provided for the use of the hospital staff only and Ms Foster was not required to undertake her usual work activities in those facilities.'
[23] The conclusion drawn by the Commissioner at paragraph [64] of his reasons for decision was the only one open to him on the facts before the Commission. The respondent has not shown on the cross-appeal that the Commissioner erred in his interpretation of s 34 and in coming to the determination that he did."
[71] It is thus submitted for the Appellant that she did not carry out her employment duties on the rooftop and nor was she required to do so. There was no connection between the rooftop and the Appellant's employment duties even though the rooftop was in the same building as where the Appellant was required to perform her duties and it remained under the control of the Appellant's employer.
[72] Thus the Appellant submitted that the rooftop of the Corral did not meet the description of "place of employment" within the meaning of that phrase in Schedule 6 of the Act and thus the incident occurred while she was "temporarily absent from the place of employment".
[73] The Regulator contended that the Appellant on 1 November 2016 was, at all times, at her place of employment when she sustained her injury.
[74] The difficulty I have with the Appellant's submission is that the Appellant herself said that she performed cleaning work on the rooftop in the course of her employment and further, that she utilised the ladder to gain access to the rooftop to perform those duties. Those duties may not have been performed on each shift but they were a regular part of her duties i.e. monthly, two-monthly or three-monthly. The Appellant was not performing duties when she was injured on 1 November 2016. Her evidence was that she was rostered on the shift on 1 November 2016 to undertake cleaning at the Restaurant. This may or may not have involved cleaning on the rooftop.
[75] Regardless of whether the Appellant was rostered to perform cleaning on the rooftop on 1 November 2016, the rooftop and the ladder were used by her in the performance of her duties as a crew member at the Restaurant. The rooftop and the ladder were also used by managers and other staff to undertake cleaning duties on the rooftop on a regular monthly, two-monthly or three-monthly basis.
[76] The rooftop to the Corral and the ladder in the Corral are encompassed within the term "place of employment" as that term is defined in Schedule 6 of the Act. The Appellant has thus failed to establish that she was "temporarily absent from her place of employment" as she was present in her "place of employment" at the time she sustained her injury.
[77] During an ordinary recess: On this issue the Appellant again placed reliance on the decision of O'Connor DP in Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service)[3] where it was said:
"[11] The primary question before the Commission was the determination of whether the injury occurred during an ordinary recess in accordance with the provisions of the Act. In undertaking that task, the Commissioner's attention should have been focused on the words of s 34(1)(c). In determining the issue of 'ordinary recess' the Commissioner has adopted a restrictive approach to the interpretation of the Act.
…
[17] As Lord Atkin observed in Weaver v Tredegar Iron & Coal Co Limited:
'It is well settled that a man injured while taking refreshment on the premises at a permitted hour, or while otherwise relieving necessities of nature, is in the course of his employment.'
[18] What constitutes an 'ordinary recess' in s 34(1)(c) of the Act will need to be determined in accordance with each factual situation. It seems to me that a toilet break is an 'ordinary recess' for the purposes of s 34(1)(c). It is 'a break or interruption of limited duration in the continuity of a normal working day'."
[78] The Appellant submitted that because of the policy that employees arrive at the place of employment at least ten minutes prior to the commencement of a shift, the normal working day for the Appellant commenced at least ten minutes prior to the start of the scheduled shift. This meant, according to the Appellant, that she was required to take a "forced break" between the time when the Appellant arrived at the premises until the time when she commenced work. It was during this time that the Appellant took the opportunity to smoke.
[79] The Appellant submitted that the Act is beneficial legislation and that the orthodox approach to the interpretation of beneficial legislation was to do so liberally in favour of the worker. Thus it was submitted that a restrictive approach to the construction of "ordinary recess" is to be eschewed: see Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service)[4].
[80] The Regulator submitted that the Appellant, on 1 November 2016, was not on an ordinary recess break. In that regard the Regulator relied upon the decision of McPherson, Davies JA and Moynihan J in FAI General Insurance Company Limited v The University of Queensland & Anor[5] where it was said:
"… As the High Court accepted in Landers v Dawson the term is normally understood to refer to a relatively brief interruption in an otherwise continuous period of work; morning or afternoon tea, lunchtime or 'smoko'."
[81] The Appellant had not commenced work on 1 November 2016 when she was injured. There was thus no interruption to an otherwise continuous period of work. The injury to the Appellant did not occur during an ordinary recess. In both Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service)[6] and in Weaver v Tredegar Iron & Coal Co Limited[7] the injury to the workers occurred during a relatively brief interruption in an otherwise continuous period of work. There was no "interruption" brief, or otherwise, to the Appellant's continuous period of work. It occurred prior to the commencement of her shift on 1 November 2016.
[82] I acknowledge that the Appellant was required to be present at the Restaurant at the time of her injury however I am unable to conclude that she was on an ordinary recess at the time of injury. Had the Appellant been injured during one of her five regular smoke breaks in her shift then it is likely she would have been injured during an ordinary recess provided there was evidence of an agreement for her to take her recess break in such a manner. The fact that such smoke breaks were taken by the Appellant in the Corral would likely result in the "voluntarily subjecting herself to an abnormal risk of injury" element of s 34(1)(c) being raised.
[83] The event is not due to the Appellant voluntarily subjecting herself to an abnormal risk of injury during the recess: The Appellant submitted that accessing the rooftop and using the ladder was an unremarkable activity and could not be characterised as presenting an "abnormal" risk of injury. The Appellant's evidence was that she had accessed the rooftop on numerous occasions prior to 1 November 2016 without incident or injury. Given that the Appellant's evidence was that she accessed the rooftop via the ladder to perform duties on the rooftop it is unlikely that she was subjecting herself to an abnormal risk of injury by climbing down the ladder. I have however previously determined that the Appellant was not on an "ordinary recess" when she was injured and thus the Appellant has not proved this element of s 34(1) of the Act on the balance of probabilities.
[84] In the circumstances I find that the Appellant has not satisfied each of the necessary elements of s 34(1)(c) of the Act and therefore she is unable to rely upon that section to satisfy the requirement that her injury arise out of, or in the course of, her employment.
Arising out of, or in the course of, employment
[85] For the Appellant to succeed in her appeal she must prove, on the balance of probabilities, that her injury arose out of, or in the course of, employment. In this regard the Appellant contends that as the incident occurred just moments prior to her starting her shift, and during a period that she was required to be present at the Restaurant, the injury was sustained in an interval which occurred within an overall period of work. The fact that it occurred in an interval does not prevent the application of s 32(1)(a) of the Act.
[86] Neate C in Kuenstner v Workers' Compensation Regulator[8] summarised the relevant legal tests for deciding whether an injury is work-related as follows:
"[22] … There are decisions for the propositions that:
- (a)the phrase 'arising out of' is wider than 'caused by' and, although it involves some causal or consequential relationship between the employment and the injury, 'arising out of' does not require that direct or proximate relationship that would be necessary if the phrase used were 'caused by'[9];
- (b)an injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to, the injury[10];
- (c)in determining whether an injury occurred 'in the course of' employment, regard must always be had to the 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 had arisen.[11]
…
[27] There are decisions for the propositions that:
- (a)the reference to 'employment' in s 32(1) is to employment as a set of circumstances, that is to the exigencies of employment of the worker by the employer, and refers to what the worker in fact does during the course of employment;[12]
- (b)the fact that an injury has been suffered arising out of, or in the course of, employment is not sufficient to establish that the employment has been 'a significant contributing factor to the injury' … and there needs to be a more substantial connection between the employment and injury;[13]
- (c)employment needs to be a 'real effective cause' of the injury and not merely the setting or background in which the injury occurs;[14]
…"
[Citations have been renumbered accordingly]
[87] The Appellant relies upon the decisions in Hatzimanolis v ANI Corporation Ltd[15] and Comcare v PVYW[16] the most recent decision by the High Court which considered the phrase "arising out of, or in the course of, the employee's employment". The majority of the High Court confirmed that the question of whether an injury arose from a person's employment was to be determined in accordance with the principles set out in Hatzimanolis v ANI Corporation Ltd. Their Honours said:
"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 whilst engaged in actual work. The next enquiry 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 where the injury occurred. The essential enquiry 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."
[88] The Appellant further relies upon the decision of Martin J in Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor[17] where he outlined the following principles enunciated in ComCare v PVYW:
"(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."
[89] Activity: Martin J then summarised the test to be applied in so far as the activity is concerned as follows:
"The test as set out in Comcare v PVYW is in two parts:
- (a)What was the activity being engaged in at the time of the injury? and
- (b)Did the employer induce or encourage the employee to engage in that activity?"
[90] The Appellant contends that the activity she was engaged in when she sustained her injury was climbing down from the rooftop via the use of the ladder.
[91] As for the second limb of the test, the Appellant submitted that when one views collectively the following matters, then the employer has implicitly induced or encouraged the Appellant to access the rooftop and thus use the ladder at the premises:
- no instruction (whether verbal or written) to the effect that the rooftop was a restricted area had been given to the Appellant at any stage during the course of her employment. In this regard I have determined that there was a warning sign on the ladder as at 1 November 2016 which apparently warned employees about access to the rooftop;
- there was no signage on the rooftop which prohibited smoking or access;
- prior to the incident, it had become common practice for staff at the premises to regularly access the rooftop to smoke. Mr Robinson was at the Restaurant far too infrequently, and generally worked in a different area of the premises, to have been able to observe the practice that had developed;
- neither the Appellant nor Mr Colless received a reprimand for accessing the rooftop. This would have been expected if accessing the rooftop to smoke was prohibited. The fact that no disciplinary action was ever taken is indicative of the employer's tacit acceptance of the practice that had developed. I do not accept that there was any tacit acceptance by the employer of the Appellant accessing the rooftop to smoke. The fact that no reprimand or disciplinary action was taken against the Appellant was because Mr Robinson was not made aware of any employee smoking on the rooftop;
- after the incident, signage was placed on the ladder. What is admitted by Mr Robinson is that additional signage was placed at, or near, the ladder. This, according to the Appellant, supports the conclusion that it was only after the incident that the practice of accessing the rooftop to smoke became prohibited. I have previously found, on the balance of probabilities, that I accept the evidence of Mr Robinson in preference to the evidence of the Appellant and Mr Colless that there was a sign on the ladder restricting access to the rooftop. The fact that the Appellant took no notice of, and simply disregarded, the substantial "no-smoking" signs in the Corral is indicative that she did not take regard of such signs when they were quite obvious. The blue signs on the ladder were much smaller in size to the substantial red "no smoking" signs in the Corral.
[92] Thus, according to the Appellant, the second limb of the test of His Honour was met i.e. the employer had implicitly induced or encouraged the Appellant to climb the three metre ladder, go through a trapdoor and enter the rooftop of the Corral to smoke.
[93] The Regulator submitted that given the Appellant was not engaged in an activity on behalf of the employer when she was injured, then whether an injury was to arise out of, or was in the course of, her employment depends upon what the employer induced or encourage her to do: see Comcare v PVYW[18].
[94] The Regulator contended that there was no evidence to suggest that the employer induced or encouraged the Appellant to engage in the activity of accessing the rooftop of the Corral to smoke cigarettes.
[95] I am unable to conclude that the employer in this instance induced or encouraged the Appellant to climb the three metre ladder, go through a trapdoor and enter the rooftop of the Corral to smoke. In reaching that conclusion I have taken into consideration the following:
- my previous finding that there was a warning sign on the ladder at the time of the incident i.e. on 1 November 2016;
- the Appellant had clearly disobeyed other warning signs in the Restaurant i.e. she had disregarded the substantial "no-smoking" signs in the Corral whilst recognising that her smoking in the area presented a health and safety risk to her, her fellow staff members and the building itself should it result in a fire;
- both the Appellant and Mr Colless gave evidence that the rooftop was not a designated smoking area for staff at the Restaurant;
- the designated smoking areas were on the footpath and inside the cars of staff members in the car park and the Appellant was well aware of those locations;
- the evidence of the Appellant was that she never smoked on the rooftop when Mr Robinson was present at the Restaurant; and
- the evidence of Mr Robinson that he was unaware that any member of staff was smoking on the rooftop. He had witnessed staff members smoking in their cars in the car park and did not consider any member of staff would be smoking on the rooftop. Having seen the photograph of the ladder (with the trapdoor) and the Corral (Exhibit 1) and the potential danger I would think that was a reasonable position to have adopted by Mr Robinson. Climbing up the ladder, lifting the trapdoor and going on the roof of the Corral posed in my view a real risk to the health and safety of any person undertaking that climb. It is difficult for me to understand why any employee of the Restaurant would contemplate the rooftop of the Corral as a place where they would be allowed to smoke. It is clear from Ms Harris' evidence that when cleaning duties were performed on the rooftop it was management and staff who were present. This, to some extent, confirms the evidence of Mr Robinson that only authorised persons were permitted to use the ladder to access the rooftop.
[96] Place: The Appellant submitted that if an analysis is performed not by reference to an activity but rather by reference to a place, then the result would be the same. The Appellant was required by her employer to be at the Restaurant at least ten minutes prior to the commencement of her shift. The Appellant thus contends that she was induced or encouraged to be at the Restaurant when her injury occurred. Provided that the rooftop was not a restricted area, the Appellant submitted that on the application of the Comcare v PVYW test, the Appellant's injury would also be found to be within the course of her employment.
[97] The Appellant was required to be at the Restaurant at the time of her injury. There was no evidence of any inducement or encouragement by the employer for the Appellant to be on the rooftop or on the ladder at the time she sustained her injury. In her evidence she indicated that she went onto the rooftop to check whether her husband was in a car in the car park. The employer was not aware on 1 November 2016 that the Appellant's husband may be in the car park at around 8:50pm. Thus, the employer could not have encouraged or induced the Appellant to go up on the rooftop to satisfy herself that her husband was not in the car park.
[98] The evidence does not indicate any inducement or encouragement by the employer for the Appellant to be on the rooftop or on the ladder on 1 November 2016. Reliance on the fact that the Appellant was required to be at the Restaurant at the time of the incident does not meet the test of inducement or encouragement to be on the rooftop or on the ladder. Further, I have previously found that there was a warning sign on the ladder when the incident occurred. That fact alone would suggest that there was no inducement or encouragement by the employer for the Appellant to go onto the rooftop to smoke prior to her commencing duties on 1 November 2016.
[99] Was the employment a significant contributing factor to the injury? The Appellant stated that for employment to be a significant contributing factor to the injury, the employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs: see Croning v Workers' Compensation Board of Queensland[19]. In Newberry v Suncorp Metway Insurance Ltd[20] Keane JA said:
"… 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."
[100] The Appellant further relied upon the following statement of Martin J in Blackwood v Civeo Pty Ltd and Anor[21]:
"The test applied in determining whether employment was a significant contributing factor must be applied in a practical way. It is the 'exigencies' of employment which must be considered and, while that will ordinarily include the contractual terms of engagement, it will generally require an analysis of the circumstances surrounding the employment …"
[101] The Appellant submitted that it was unnecessary to embark upon a detailed analysis of the nature of the Appellant's employment. Rather, it was sufficient to note that the Appellant's employer implicitly induced or encouraged her to engage in the activity that resulted in her injury. Once that was accepted it followed that the Appellant's employment was a significant contributing factor to her injury. I have however previously found that the employer did not induce or encourage the Appellant to be on the rooftop of the Corral smoking on 1 November 2016.
[102] The Appellant further contended that had the Appellant's employer not induced or encouraged her to access the rooftop, she would not have accessed the rooftop on the day of the incident and her injury would have been avoided. It is difficult, given the evidence of the Appellant, to conclude that the Appellant would not have accessed the rooftop in such circumstances. The employer certainly did not induce or encourage the Appellant to smoke in the Corral. The employer had substantial signs in the Corral prohibiting smoking in the area, yet the Appellant's evidence was that she smoked in the Corral at least five times per shift.
[103] I have also found that there was a warning sign on the ladder which obviously the Appellant either did not notice the warning sign, or alternatively, she chose to disregard the warning sign when she went to the rooftop twice per shift to smoke.
[104] The Regulator submitted that the requirement that the employment be a significant contributing factor to the injury relied on the comments in the abovementioned passages of Keane JA in Newberry v Suncorp Metway Insurance Ltd[22] and Martin J in Campbell v Australian Leisure and Hospitality Group Pty Ltd & Anor[23].
[105] The Regulator contended that the Appellant's employment was merely the setting in which the injury occurred. Further, the Appellant in climbing the ladder and going onto the rooftop of the Corral was on a frolic of her own.
[106] In the circumstances I am unable to find that the Appellant's employment was a significant contributing factor to her injury. The Restaurant where the Appellant was employed was merely the setting in which her injury occurred. There was no encouragement by the employer, either expressly or impliedly, for the Appellant to be smoking on the rooftop on 1 November 2016. There were designated smoking areas and the rooftop was not one of them. The employer in no way encouraged the Appellant to smoke on the rooftop. The employer merely required the Appellant to be present at the Restaurant at 8:50pm on 1 November 2016. The Appellant herself made the decision to go onto the rooftop and smoke. On her own evidence the Appellant did not seek any permission to go on to the rooftop that evening from any manager.
Conclusion
[107] The Appellant has not discharged her onus of establishing, on the balance of probabilities, that she sustained an injury within the meaning of s 32(1) of the Act. I thus dismiss the appeal and confirm the decision of the Workers' Compensation Regulator made on 23 February 2017 to reject Ms Sarkaria's application for compensation in accordance with s 32 of the Act.
[108] The Appellant is to pay the Workers' Compensation Regulator's costs of and incidental to the appeal to be agreed. Failing agreement, liberty to apply is granted.
Footnotes
[1] WorkCover Queensland v Dreadon (1999) 161 QGIG 775
[2] Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service) [2014] ICQ 017
[3] Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service) [2014] ICQ 017
[4] Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service) [2014] ICQ 017
[5] FAI General Insurance Company Limited v The University of Queensland & Anor [1997] QCA 259
[6] Simon Blackwood v State of Queensland (Wide Bay Hospital and Health Service) [2014] ICQ 017
[7] Weaver v Tredegar Iron & Coal Co Limited (1940) All ER 157, 164
[8] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083
[9] Robert William Avis and WorkCover Queensland [2000] 165 GQIG 788; WorkCover Queensland v Curragh Queensland Mining Pty Ltd [2003] QGIG 6.
[10] Nevien Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324.
[11] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 484 (Mason CJ, Deane, Dawson and McHugh JJ).
[12] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 529 [27].
[13] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 532, [42]-[43].
[14] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.
[15] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
[16] Comcare v PVYW [2013] 250 CLR 246
[17] Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 016
[18] Comcare v PVYW [2013] 250 CLR 246 at para 34 and 35
[19] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
[20] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Keane JA said at [42]
[21] Blackwood v Civeo Pty Ltd and Anor [2016] ICQ 001
[22] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519
[23] Campbell v Australian Leisure & Hospitality Group Pty ltd & Anor [2015] ICQ 016 at para 24