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Glass v Workers' Compensation Regulator[2019] QIRC 46

Glass v Workers' Compensation Regulator[2019] QIRC 46

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Glass v Workers' Compensation Regulator [2019] QIRC 046

PARTIES:

Glass, Geraldine

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/136

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

7 March 2019

HEARING DATES:

9, 10 August 2018

12 September 2018 (Respondent's submissions)

26 September 2018 (Appellant's submissions)

8 October 2019 (Respondent's submissions in reply)

HEARD AT:

Brisbane

MEMBER:

Knight IC

ORDERS:

  1. The appeal is dismissed.
  1. The decision of the  Respondent  dated  26 June 2017 is affirmed.
  1. The Appellant is to pay the Respondent's costs of and incidental to the appeal.

CATCHWORDS:

WORKERS'   COMPENSATION   – APPEAL AGAINST DECISION whether the appellant's shoulder injury arose out of, or in the course of, her employment where the appellant was on an end-of-year school excursion in Vanuatu – where appellant hurt her shoulder while swinging from a rope at the Blue Lagoon – where attendance at the Blue Lagoon and rope swing activity did not form part of the itinerary and pre-travel approval process – whether the appellant was induced or encouraged to engage in rope swinging activity by her employer – whether appellant's participation in rope swing activity formed part of her duties – whether employment was a significant contributing factor to the injury.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld)

CASES:

Campbell v Australian Leisure & Hospitality

Group Pty Ltd & Anor [2015] ICQ 016

Comcare v Mather (1995) 56 FCR 456

Comcare v PVYW [2013] HCA 41

Coulthard v South Australia (1995) 63 SASR 531

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Graham Douglas Stewart v Q-COMP (C/2010/52)

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Luxton v Q-Comp (2009) 190 QGIG 4

Newbury v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519

Newman v Andgra Pty Ltd (2002) 171 QGIG 883

Qantas Airways Limited v Q-Comp and Blanch (2009) 191 QGIG 115

Q-COMP v Green (2008) 189 QGIG 747

Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001

APPEARANCES:

Ms. R. O'Gorman of Counsel, instructed  by  Ms. R. Sanderson of Holding Redlich, for the Appellant.

Mr. P. B. O'Neill of Counsel, directly instructed by Ms. S. Young of the Workers' Compensation Regulator, for the Respondent.

Decision

  1. [1]
    On 24 November 2016, Ms Geraldine Glass, a mathematics and aquatic studies teacher at Xavier Catholic College ("XCC") in Hervey Bay, injured her shoulder while swinging on a rope at the Blue Lagoon in Vanuatu.
  1. [2]
    In this appeal, Ms Glass, pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act"), is seeking to set aside a decision by the Workers' Compensation Regulator ("the Regulator") of 4 July 2017, which confirmed WorkCover's rejection of an application for compensation for the shoulder injury.

Background

  1. [3]
    Ms Glass took a turn on the rope swing at the Blue Lagoon in Vanuatu during an end-of-year school excursion in 2016 and injured her shoulder.
  1. [4]
    At the time she injured her shoulder, Ms Glass was employed as a teacher by Brisbane Catholic Education ("BCC"), at the XCC, located in Harvey Bay.
  1. [5]
    During 2016, Ms Glass taught mathematics and aquatic studies to secondary students.
  1. [6]
    For more than decade, XCC has provided secondary students with the option of travelling to Vanuatu on an overseas marine studies and cultural exchange. Ms Glass had previously volunteered to attend the Vanuatu trip on approximately six other occasions.
  1. [7]
    In 2016, XCC planned to offer the same opportunity to year eleven students at the conclusion of Term 4.
  1. [8]
    The intended duration of the trip was a  period  of seven  days from Wednesday,    23 November until Wednesday, 30 November 2016. Along with another teacher,  Mr Tony McQuaid, Ms Glass was the nominated Tour Leader / Tour Coordinator for the 2016 trip.
  1. [9]
    Previously, approval for such trips had been requested and provided at a local school and regional director level.
  1. [10]
    In early 2016, BCC revisited its processes and policies in respect of travel approval, partly in response to inconsistencies in the way travel had been approved and arranged by schools in the past. In May or June 2016, BCE distributed a copy of the draft International Travel and Mandatory Procedures ("the Guidelines") for all schools to follow.
  1. [11]
    The Guidelines required BCE schools wishing to undertake travel to make a formal application to the BCE International Travel and Advisory Panel ("ITAP").
  1. [12]
    Although the organisers for proposed travel to Vanuatu had already received preliminary approval for the overseas trip from the XCC College Leadership Team ("CLT") earlier in 2016, the tour organisers submitted a formal application to ITAP in August 2016.
  1. [13]
    Approval for the trip was provided by ITAP in mid-August 2016, subject to several conditions, which were satisfied by XCC before the overseas travel commenced.
  1. [14]
    The group, which included five adults and twenty-seven students, departed Australia on 23 November 2016.
  1. [15]
    On the second day of the trip, 24 November 2016, a decision was taken to alter the itinerary which resulted in both the teachers and students travelling to the Rentapao waterfalls and the Blue Lagoon.
  1. [16]
    On arriving at the Blue Lagoon, the group discovered a rope swing activity which involved a participant climbing onto an elevated platform, taking hold of a knotted rope, swinging off the rope over the water, and then letting go of the rope and falling into the lagoon.
  1. [17]
    Neither Ms Glass or Mr McQuaid were aware of the rope swing activity before their arrival at the Blue Lagoon.
  1. [18]
    Ms Glass took a turn on the rope swing and subsequently injured her shoulder.

Nature of the Appeal

  1. [19]
    The Regulator concedes Ms Glass is a 'worker' within the meaning of s 11 of the Act and, further, that she has sustained an injury to her right shoulder.
  1. [20]
    As such, the remaining issues in dispute are:
  • whether Ms Glass' injury arose out of, or in the course of, her employment with XCC; and
  • whether Ms Glass' employment was a significant contributing factor to her injury.
  1. [21]
    Ms Glass maintains that at the time of the injury she was undertaking work that she was employed to do, or, at the very least, participating in an activity that was incidental to that work.
  1. [22]
    In those circumstances, Ms Glass contends her injury arose out of, or in the course of, her employment and that her employment was a significant contributing factor to her injury.
  1. [23]
    The Regulator maintains Ms Glass was on a frolic of her own and, moreover, that her injury occurred in circumstances which fell outside the bounds of the employment relationship, because:
  • neither ITAP nor any member of the CLT directed Ms Glass to participate in the rope swing activity;
  • Ms Glass did not seek permission to participate in the rope swing activity;
  • Ms Glass made a voluntary choice to participate in the rope swing activity; and
  • neither Ms Glass nor any other teaching staff present at the Blue Lagoon undertook an adequate or proper risk assessment of the rope swing activity.
  1. [24]
    The Regulator also submits that the 'camp' or interval line of authorities apply to the events in Vanuatu, contending that in circumstances where BCE has neither approved, authorised, induced nor encouraged Ms Glass to participate in the rope swing activity, she has not sustained a work-related injury which is compensable.

Statutory provisions

  1. [25]
    The Act relevantly provides:

32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—
  1. (a)
    for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or

Events of 24 November 2016

Change to the Itinerary

  1. [26]
    Within the original application and itinerary approved by ITAP for the Vanuatu trip, the Mele Cascades waterfall excursion was listed as taking place from 1.30pm until 4.30pm on 24 November 2016.
  1. [27]
    On the day of the intended excursion, Mr McQuaid told the Commission he visited the activities hut at Erakor Island Resort at around 2pm and recalled resort staff raising concerns about the desirability of attending the Mele Cascade waterfalls, in circumstances where they indicated a period of dry weather in Vanuatu meant the waterfalls were not flowing.
  1. [28]
    Mr McQuaid was reasonably clear about the timing of his discussions with the resort staff, recalling that the morning itinerary had already run over due to students involved in the diving activities taking longer to arrive back at Erakor Island Resort.
  1. [29]
    Although he was not clear about who was present when the final decision was made to alter the itinerary, Mr McQuaid suggested a recommendation was put forward to the other teachers on the trip that they attend the Blue Lagoon in lieu of the Mele Cascades. On his version of events, they all agreed to the proposal.
  1. [30]
    Ms Glass' evidence was the decision to travel to the Blue Lagoon was made by all five teachers in the group. She could not recall the time of day when the discussions were held, but thought the discussions may have been held in the morning.
  1. [31]
    Both Mr McQuaid and Ms Glass confirmed they had not visited the Blue Lagoon in their past trips to Vanuatu.
  1. [32]
    Ms Helen Freshwater, assistant principal of religious education, gave evidence that it was a group decision to go the Blue Lagoon. She recalled Mr McQuaid, Ms Glass and Ms Margaret Robertson, another teacher, were involved in the discussions, though she seemed less sure during cross-examination as to whether Ms Robertson was present.
  1. [33]
    Ms Freshwater told the  Commission that she understood both Mr McQuaid and   Ms Glass had been to the Blue Lagoon before and she supported the decision as a member of the CLT.
  1. [34]
    Mr McQuaid considered that Ms Freshwater's acknowledgment of the change to the itinerary was an acknowledgement by a member of the CLT that the Blue Lagoon was a suitable substitution.
  1. [35]
    Mrs Belinda McQuaid, who also went to Vanuatu, could not recall being involved in any discussions in relation to the Blue Lagoon and was quite clear in her evidence that she did not want to have a role in discussions around changes to the itinerary.
  1. [36]
    Likewise, Ms Robertson could not recall being involved in any discussions about the change to the daily programme and was unable to recall who informed her the itinerary was changing.
  1. [37]
    Neither Mr McQuaid, Ms Freshwater nor Ms Glass were aware there was a rope swing activity at the Blue Lagoon before arriving at the destination.
  1. [38]
    Ms Glass' evidence was that a risk assessment was undertaken in respect of the proposed destination, but that it was confined to discussions around the Blue Lagoon being a tidal pool and, later, whether the Blue Lagoon was a suitable activity to replace Mele Cascades. During cross-examination, Mr McQuaid confirmed that there was not a lot of discussion in respect of any risks associated with attending the Blue Lagoon.

The Blue Lagoon and the rope swing activity

  1. [39]
    Upon arriving at the Blue Lagoon, the teachers and students walked down a cement pathway to reach the lagoon. They placed their belongings in a central location and it was at this point that members of the group became aware of the rope swing activity.
  1. [40]
    Mr McQuaid told the Commission he called all the students to a location that was quite elevated so they could scope out the area.
  1. [41]
    Ms Glass recalled that the rope swing was used from a platform on a ledge.
  1. [42]
    Mr McQuaid recalled many students wanted to participate in the activity. He said that at some point a decision was made that the group was going to attempt the rope swing.
  1. [43]
    When shown photographs of the rope swing, Dr Margaret Lee, who was tasked with developing the Guidelines for BCE and is a member of ITAP, confirmed the activity would not have been approved by ITAP and was an unsafe and high-risk activity.
  1. [44]
    In respect of proposed activities undertaken at height or involving a degree of height, Mr Michael Kearney, Director of Administrative Services at BCC and chairperson of ITAP, told the Commission:

…when we consider risk, we also look at what we would see as high risk or extreme risk…Heights is an area over the last five years Brisbane Catholic Education has paid particular attention to in working with schools and in our office. And working at heights has been a significant theme across our organisation. So like several other, like, extreme sport activities, water activities, ITAP would focus on that at the provisional application level, and then more fulsomely at the full approval request.

  1. [45]
    Mr Kearney confirmed he viewed a rope swinging activity to be a higher risk activity because of the many potential risk factors that could come into play including the integrity of the rope, the integrity of the branch or the beam that supports the rope, the capacity to supervise young people, clearing spaces for someone to fall into the water and the depth of the water.
  1. [46]
    During cross-examination, Dr Lee acknowledged that just because an activity was high risk, this did not mean that it could not be engaged in, provided the appropriate risk management strategies were in place.
  1. [47]
    Although she maintained that the inclusion of a rope swing activity would not be, and had never been, approved by ITAP, she noted that ITAP, in its assessment of whether to approve activities, would consider factors including:
  • whether a full and comprehensive risk mitigation can be executed; and
  • whether the school had a full understanding of the risks associated with the activity.
  1. [48]
    In response to a question around the obligation to consult in circumstances where a planned itinerary activity was being replaced with a higher risk replacement activity, Dr Lee maintained:

There is an obligation to – to mitigate risk and to run a full and comprehensive risk plan. Does this need I think, in adopting a position of duty of care, you would need to have the full answers of the – of the situation at hand. So is there a licence for this activity to occur? That would require consultation with the company. The depth, the safety of the rope and so on. Now, if they had rung us in conducting duty of – full duty of care – they could have just picked up the phone....I could have said. “I wouldn’t, and you shouldn’t. Not – not being there and not conducting anything, but if you hang on. I will ring somebody who is engaged in fulltime health and safety”. They would have said no, and then I would have said, then, “No, the answer’s no”. I think the comment from Xavier College was that it was impractical to – to do that. Well… that’s a pretty quick conversation. If they had conducted what they should have done, which was a full and comprehensive risk analysis, that would take a long time too. And I think the idea is to do it without emotion. We do it without the hype of having a class – a busload of students with us. We need to take risk seriously.

  1. [49]
    Dr Lee confirmed that a complete and full comprehensive risk assessment would have included:
  • the extent of the risk and the level of risk of a slip and fall from a height;
  • assessment whether an operator was appropriately licenced;
  • whether instructors possessed appropriate training and experience;
  • whether appropriate rescue equipment was available at the scene;
  • the risk of someone becoming entangled in the rope;
  • an assessment of a muscular tear from someone weight bearing on the rope; and
  • an assessment of the risk of a person falling from a height into a body of water and sustaining an injury.
  1. [50]
    Mr Kearney's evidence was that even in circumstances where the rope swing activity had been included in XCC's application to ITAP, "it probably wouldn't even have got to ITAP, our health and safety people, in reading the draft – would have potentially sent that back for review…".
  1. [51]
    Mr Kearney was quite clear the rope swing activity would not have been approved through the ITAP process.
  1. [52]
    That aside, Mr Kearney confirmed that in circumstances where there had to be a change in travel itinerary and the proposed inclusion was a higher risk activity, then he expected teaching staff would have:
  • undertaken an appropriate risk assessment for the planned activity;
  • made contact with the school leadership team to inform the change and seek advice;
  • made contact with the Travel Assistance Provider to inform of the change and advise of the nature of the alternative activity; and
  • make contact with a representative from ITAP.
  1. [53]
    Ms Glass said she undertook her own risk assessment upon arrival at the Blue Lagoon. She told the Commission she "had a look around. I ascertained whether everything was in accordance with, you know, whether it would be safe. Whether I thought it would be safe".
  1. [54]
    During cross-examination, in respect of whether she engaged with other staff about a risk assessment, Ms Glass thought that perhaps they had a chat about it.
  1. [55]
    Mr McQuaid could not recall having a discussion with any other staff members in respect of a risk assessment for the rope swing activity. He told the Commission he could remember having a bit of a look around, talking to some Blue Lagoon staff and inquiring about the cost of participating in the rope swing activity.
  1. [56]
    After establishing some boundaries with the students in respect of where they could go, Mr McQuaid maintains he got into the water and swam out to where the rope swing was in order to test the depth. He said he wanted to check and make sure everything was safe.
  1. [57]
    Neither Ms Glass nor any of the other teachers who gave evidence in the appeal proceedings were able to recall or confirm observing Mr McQuaid swim out to test the water depth.
  1. [58]
    In terms of practically assessing the risk associated with the rope swing activity,   Mr McQuaid told the Commission he observed, on the day, that the rope was thick and considered there was no danger of it breaking.
  1. [59]
    He recalled it was wrapped many times around the large tree to which it was attached. He noted that the other teachers were quite close to the activity and that water depth was not an issue.
  1. [60]
    During cross-examination, in respect of the factors he considered when assessing the rope swing in terms of risk, Mr McQuaid confirmed he:
  • did not consider the risk of someone falling or slipping from the platform;
  • did not consider the risk of someone being tangled in the rope; and
  • did not consider the risk of someone suffering a muscle tear from weight bearing on the rope.
  1. [61]
    Likewise, during cross-examination Ms Freshwater confirmed:
  • none of the teachers undertook a formal risk assessment of the rope swing activity;
  • no risk assessment was undertaken in respect of the possibility of someone slipping from the platform;
  • no risk assessment was undertaken in respect of someone sustaining an injury from the manner in which they struck the water; and
  • she was not aware of the qualifications or experience of the lagoon staff.
  1. [62]
    In relation to the height the users of the rope swing were achieving, Mr McQuaid acknowledged during cross-examination that there was some risk of injury from an inappropriate entry into the water.
  1. [63]
    According to Mr McQuaid, after waiting for other tourists to finish their turn on the rope swing, the Blue Lagoon staff eventually offered the XCC group an opportunity to participate in the rope swing activity. In respect of whether there was any discussion about whether the teachers  would  accompany  the  students  onto  the  platform,  Mr McQuaid said "not initially, no".
  1. [64]
    Mr McQuaid said he participated in a very brief discussion with staff at the lagoon and recalled that there were a couple of staff members demonstrating the rope swinging technique to the students. During cross-examination, Mr McQuaid said it could have been one staff member.
  1. [65]
    He also confirmed that he did not enquire with the staff or the venue about the training the Lagoon staff had undertaken or how long they had been working in the role.
  1. [66]
    Ms Glass explained she participated in the rope swing activity to develop "right relationships with students. It gives them confidence…. also develops an inter-respect between the teachers and the students".
  1. [67]
    Ms Glass confirmed she was not required to participate in the rope swing in order to adequately perform her obligations in respect of supervising the students. Likewise, Mr McQuaid confirmed there was no condition associated with the supervision of students that required him to swing on the rope.
  1. [68]
    Mr McQuaid confirmed the idea of accessing the rope swing was very much student-driven, with several students actively encouraging him to participate.
  1. [69]
    When it was her turn to swing off the platform, Ms Glass said she held the rope, placed her foot on the knot at the bottom of the rope and swung out. At the point of maximum pendulum swing – about 45 degrees – she said she dropped into the water like most other people would have, but she thought she may have fallen a bit earlier, at which point she felt something "go" in her shoulder.
  1. [70]
    Ms Glass said she put her arm up to relieve the pain, swam over to the side of the lagoon and eventually got out of the water. Upon returning to Erakor Island Resort, she recalled putting ice on her shoulder and strapping it as best she could. Over the next few days she took Nurofen and Panadol to assist with the pain.
  1. [71]
    Mr McQuaid told the Commission the first time he became aware Ms Glass was injured was when the group returned to Erakor  Island  Resort  and  he  observed Mrs McQuaid and Ms Robertson providing first aid treatment to Ms Glass. He confirmed he was not aware of the extent of Ms Glass' injury and did not make any recommendations that it should be assessed.
  1. [72]
    Ms Glass confirmed it was her voluntary choice to participate in the rope swinging activity and that, other than Mr McQuaid, the other teachers did not. She acknowledged that while she was participating in the rope activity, she had no capacity to supervise the students.

Role of Ms Freshwater

  1. [73]
    Although not specifically mentioned in the Ms Glass' facts and contentions, an emerging theme during the proceedings and one contained in her final submissions was that the decision to attend the Blue Lagoon was given the blessing of Ms Helen Freshwater, a member of the school's senior leadership team.
  1. [74]
    Form 4 of the ITAP application sets out the key responsibilities of individual staff members on the exchange to Vanuatu.[1]Ms Freshwater's key responsibilities were listed as:
  • on hand should serious behaviour arise;
  • sign off on cash purchases – e.g. transport; and
  • representative of CLT on excursion.
  1. [75]
    Ms Freshwater's evidence was that her understanding of her presence on the trip was that she felt that she was representing the CLT, to be making any decisions on the ground during the trip.
  1. [76]
    In respect of her involvement in the planning of the trip, seeking approval for the trip and/or her instructions to Ms  Glass  or  Mr  McQuaid  during  the  Vanuatu  trip,  Ms Freshwater confirmed she:
  • was not involved in planning for the trip or making any decisions about what was going to be on the itinerary;
  • despite being a member of the CLT, had not participated in the approval of the Vanuatu trip;
  • was not able to recall any discussions where anyone had directed her or instructed her as to what her role on the trip was, and had essentially just assumed it was her role to make decisions on the ground;
  • was not involved in the ITAP approval process, had no understanding of the process and no knowledge of the ITAP Guidelines and mandatory procedures prior to embarking on the trip to Vanuatu;
  • was not aware this was the first trip to Vanuatu where there had been a change to the itinerary;
  • was not familiar with the Guidelines and this was a failing on her part;
  • did not have the contact numbers for the XCC or BCE workplace health and safety officer or manager;
  • was not aware of the Curriculum Activity Risk Assessment ("CARA") guidelines;
  • did not inquire as to whether Mr McQuaid had previously visited the Blue Lagoon;
  • was not aware of the rope swing activity prior to arriving at the Blue Lagoon;
  • was of the understanding at the time they departed Erakor Island Resort that the group would only be swimming at the Blue Lagoon;
  • did not swing on the rope because she feared heights;
  • did not give a direction to Ms Glass or Mr McQuaid to swing on the rope;
  • did not give permission to either Ms Glass or Mr McQuaid to swing on the rope; and
  • was not requested by Ms Glass or Mr McQuaid to give her approval to participate in the rope swing.
  1. [77]
    Mr Kerry Swann, principal of XCC, told the Commission that Ms Freshwater was present on the trip as a support to the trip leaders. He was clear that her role was not to take over the excursion or make decisions as such.
  1. [78]
    Mr Swann explained that in response to challenges the school had experienced (and he had observed) in relation to the behaviour of both a teacher and some students on a prior trip, he and the board had agreed it would be appropriate to also include a member of the CLT on the trips, in order to deal with any serious behavioural issues and to provide additional support.

BCE and XCC Policies, Codes and Guidelines – Safety and International Travel

ITAP Guidelines and Mandatory Procedures

  1. [79]
    Dr Lee provided the Commission with a brief history in respect of the development of the Guidelines and described how ITAP went about its role in assessing applications for travel by BCE schools.
  1. [80]
    The mandatory procedures contained in the Guidelines include provisions relating to risk management, which among other obligations, require applicants for overseas and domestic travel to identify risks and develop plans to eliminate or mitigate any identified risks.
  1. [81]
    Ms Glass told the Commission she did not read all the Guidelines when she was completing the relevant documentation required for ITAP's approval process. She acknowledged that, at best, she had a cursory knowledge of the Guidelines and the mandatory procedures at the time she departed for Vanuatu.
  1. [82]
    Mr McQuaid, the other tour leader, confirmed he was involved in preparing and submitting the application to ITAP for the Vanuatu trip.
  1. [83]
    The Guidelines and mandatory procedures recognise that risks will arise that originally may not have been anticipated when the initial application for overseas travel was compiled.
  1. [84]
    Although the Guidelines appear to contemplate that circumstances or events may arise while travelling which require documentation to be retained in the event there is a change in travel plans, cl 2.2.6 of the Guidelines stipulates that any significant variation to the original proposal, itinerary or activities of staff or students requires a resubmission of the original travel proposal to ITAP.
  1. [85]
    Ms Glass told the Commission she was not aware of the requirement to resubmit an application for approval in circumstances where there was a significant variation to the application.
  1. [86]
    Although Mr McQuaid maintained he had read the Guidelines, he was unable to recall cl 2.2.6 of the Guidelines.
  1. [87]
    Although it is not entirely clear how he came to  be aware of such  an  obligation,  Mr McQuaid told the Commission he was cognisant of there being a requirement for teaching staff on a trip to contact a member of ITAP if there was a significant variation to the itinerary.
  1. [88]
    Ms Glass acknowledged that she only became aware "retrospectively" after the trip that ITAP were to be contacted if there was a variation to the itinerary.
  1. [89]
    The Guidelines require travel organisers to register the travel with the Department of Foreign Affairs and to also register with a nominated travel assistance provider. In respect of the XCC exchange to Vanuatu, there is no question that this requirement was not complied with.
  1. [90]
    Ms Glass told the Commission she was not aware of the Guideline's requirements in respect of the travel assistance provider, nor did she take a contact number for a provider when she travelled to Vanuatu. Likewise, Mr McQuaid told the Commission he was not aware of the existence of the nominated travel assistance provider and had not registered the travel as required.
  1. [91]
    The Guidelines also confirm that the BCC Code of Conduct ("the Code") and relevant workplace health and safety legislation are implicit within the mandatory procedures for BCE staff and students undertaking travel.

ITAP approval process – Vanuatu Trip

  1. [92]
    Dr Lee told the Commission that ITAP took a robust approach when it reviewed the risk associated with activities included in any proposed school travel and required a comprehensive risk mitigation strategy to be developed and included in every application.
  1. [93]
    Clause 1.4 of the Guidelines highlights that international travel by school staff places particular responsibilities and accountabilities on its staff. BCE staff are specifically required to ensure the Guidelines are met and the mandatory procedures followed.
  1. [94]
    Ms Glass' evidence was that she had some limited involvement in the process of obtaining ITAP approval, which included her completing Form 3, Travel Objectives and Quality Management Plan.
  1. [95]
    According to Form 2 within the original application to ITAP for the Vanuatu trip,[2] Ms Glass' other responsibilities included developing a Curriculum Resources Plan and completing all tasks required for curriculum finalisation.
  1. [96]
    Mr McQuaid confirmed the ITAP approval process included the completion of many forms. He was also aware ITAP's role was to approve the activities and in so doing required knowledge of the activities that were planned.
  1. [97]
    Mr McQuaid's evidence was that he was not aware of cl 1.4 of the Guidelines, nor had he read the clause before departing for Vanuatu.
  1. [98]
    Form 7 contained a risk management plan which was required to be included in XCC's application to ITAP for the travel to Vanuatu.[3]
  1. [99]
    Mr Kearney told the Commission that Ms Michelle Walker, the manager of health and safety services, and her team undertakes an analysis of the Form 7 as part of the travel approval process.
  1. [100]
    The Guidelines require schools that are submitting an application for travel approval to discuss the risk management plan and obtain endorsement from their in-house workplace health and safety manager, as well as the relevant BCE workplace health and safety officer before formally submitting to ITAP for its consideration.
  1. [101]
    The XCC risk management plan for the Vanuatu trip was six pages in length and contained a risk assessment for the various activities contained within the proposed itinerary, along with other identified risks associated with illness through to scuba diving accidents and natural disasters.
  1. [102]
    Within the risk management plan for the Vanuatu travel, scores were allocated to identified risks according to likelihood, impact and risk level. XCC was required to nominate strategies to mitigate the risk and then assign a risk level outcome.
  1. [103]
    Activities including snorkelling and scuba diving were allocated risk scores and included in the risk management plan approved by ITAP.
  1. [104]
    The trip to the Blue Lagoon and the rope swing activity were not included in the original itinerary or addressed in the risk management plan submitted to ITAP for approval in the second half of 2016.
  1. [105]
    Mr McQuaid acknowledged the trip to the Blue Lagoon was not an ITAP or school approved activity and that ITAP had not approved the rope swing activity for students or staff.
  1. [106]
    During cross-examination, Ms Glass confirmed the rope swing activity at the Blue Lagoon was not approved by ITAP. Moreover, she had made no attempt to contact a member of ITAP to approve the activity.

BCE Code of Conduct

  1. [107]
    The Code, which applies to all employees engaged by BCE, sets out standards of behaviour that are expected of its employees.
  1. [108]
    Among its various obligations, the Code requires its employees to take reasonable steps to protect students from a reasonably foreseeable risk of injury in respect of both college-based and out of college activities. Both Ms Glass and Mr McQuaid conceded their duty of care, in this regard, also extended to staff as well as students.
  1. [109]
    The Code also requires employees to comply with relevant workplace health and safety legislation and policies, setting out an expectation that all employees will provide and maintain a safe and healthy work environment by putting in place safe systems of work. The Code notes that employees may be required to conduct risk assessments from time to time, having regard to the welfare of employees and students.
  1. [110]
    Dr Lee told the Commission that both the Code and its associated risk management obligations are adopted within the Guidelines and mandatory procedures. Dr Lee confirmed there is a very clear statement through both the Guidelines and the associated documentation that a full and comprehensive risk assessment for the safety of children is to be conducted at all times. Furthermore, where there is a significant variation, that variation needs to go through ITAP.
  1. [111]
    Ms Glass confirmed she was aware of the obligations set out in the Code in respect of her duty of care and the necessity of undertaking risk assessments, but that she was not aware of the requirements of cl 2.4.3 of the Guidelines which requires staff engaging in international travel to observe the BCC Code of Conduct at all times.

XCC Child and Youth Risk Management Strategy

  1. [112]
    The XCC Child and Youth Risk Management Strategy ("the Strategy") requires effective risk management plans are developed, noting the plan should include:

risk assessments and risk mitigation which are carried out for all medium, or higher risk activities undertaken within the school and all activities undertaken outside the school.

(my emphasis)

  1. [113]
    According to the Strategy, the BCE health and safety team are available to provide support to XCC, if requested, to carry out risk assessments and implement a risk management plan. The document advises that a dedicated workplace health and safety officer is employed at the college to assist in coordinating risk assessments.
  1. [114]
    Within the document, employees are encouraged to manage the supervision of students appropriately to ensure there is adequate supervision in place.
  1. [115]
    Ms  Glass  confirmed  she  was   aware  of  her  obligations  under  the  Strategy.   Mr McQuaid indicated he was aware Ms Julie Westbrook was the nominated workplace health and safety officer at XCC.

Curriculum Activity Risk Assessments

  1. [116]
    In undertaking risk assessments there is an expectation that BCE employees, at a minimum, will refer to the CARAs developed by Queensland Education.
  1. [117]
    A paragraph on the BCE health and safety webpage housing the CARA document notes that:

The risk assessments created by Education Queensland for curriculum activities, allow us to easily identify potential hazards and determine appropriate controls for certain curriculum activities. They also serve as a benchmark standard for us to comply with to ensure the safety of students in those activities.

  1. [118]
    Although there is not a specific CARA guideline for swinging off a rope into water, the Regulator provided the Commission with the relevant guidelines for swimming (at locations other than a pool), diving, climbing and abseiling with the use of specialised equipment and ropes.
  1. [119]
    Other than the diving guideline which did not appear to nominate a risk rating at all, the remaining activities were designated with risk ratings ranging from high to extreme.
  1. [120]
    Ms Glass told the Commission she was aware of the CARA documents. Likewise, Mr McQuaid told the Commission he was aware of the CARA guidelines and had previously relied on them to undertake risk assessments for other activities he was involved with.
  1. [121]
    During the proceedings Mr McQuaid accepted the rope swing activity was a higher risk activity than swimming.
  1. [122]
    Dr Lee told the Commission that in the event it was necessary to change an activity, teaching staff should look for a lower risk activity that would meet the curriculum or cultural goals of the trip. She provided an example of a group undertaking theory work in relation to marine studies and comparative cultural or religious studies.
  1. [123]
    Mr Kearney gave evidence that if it was necessary to change the itinerary, then it would be logical for the activity chosen in substitution to be of equal risk or a lower risk to the planned and approved activity.
  1. [124]
    Despite eventually acknowledging the rope swing activity was accompanied with a higher level of risk, Mr McQuaid steadfastly maintained his view that the inclusion of the activity did not constitute a significant variation to the itinerary.

Findings

  1. [125]
    Having considered the evidence before the Commission, I am satisfied that in mid-2016 draft ITAP guidelines were circulated by BCE with the clear intention that all schools, including XCC, would follow a prescriptive and in-depth assessment process when applying for a future travel.
  1. [126]
    Although the ITAP guidelines came into full force on 1 September 2016, I am also satisfied XCC sought and was granted conditional approval in accordance with the guidelines in or around August 2016.
  1. [127]
    As best I understand it, BCE had experienced some challenges in the past with certain schools taking a lackadaisical approach to travel approval.
  1. [128]
    I accept the purpose of introducing the ITAP Guidelines and mandatory procedures was to introduce a more consistent, robust and structured approval process for all BCE school travel, with a view to ensuring all planned activities were safe for students and staff, and to also ensure the travel was deemed appropriate and aligned to curriculum and other relevant criteria.
  1. [129]
    The Guidelines confirm the Code and relevant workplace health and safety legislation are implicit within the mandatory procedures for BCE staff and students undertaking travel.
  1. [130]
    A significant element of the ITAP approval process required schools to submit a risk management plan which involved identifying all proposed activities, allocating risk scores and identifying mitigation strategies to eliminate or reduce risk.
  1. [131]
    By the end of August 2016, XCC had received conditional approval from ITAP for its proposed trip to Vanuatu, with full approval provided prior to the commencement of the trip.
  1. [132]
    It is clear that prior to and during the school exchange to Vanuatu, Ms Freshwater, Ms Robertson and Mrs McQuaid had little (if any) knowledge of the ITAP Guidelines and mandatory procedures.
  1. [133]
    Although I accept Ms Glass had some understanding of the Guidelines in circumstances where she participated in the application process, it appears she had not read, in any detail, the mandatory procedures within the Guidelines, nor understood its interaction with the Code and other relevant policies.
  1. [134]
    Likewise, Mr McQuaid had a very limited knowledge of the Guidelines, to the extent that the requirement to register the trip with International SOS was overlooked.
  1. [135]
    It is not in contention that at the point of departure to Vanuatu, the visit to the Blue Lagoon and the rope swing activity did not form part of the original itinerary and had not been included in the risk management plan originally submitted to ITAP for consideration and approval.
  1. [136]
    I accept, having regard to the evidence of Dr Lee and Mr Kearney, that, on its own, swimming in the Blue Lagoon would most likely have been accepted as a suitable alternative activity, but that the rope swing activity would have been rejected by ITAP.
  1. [137]
    I am satisfied it is more likely than not that the decision to change the itinerary and attend the Blue Lagoon was made on or after 2pm in the afternoon of 24 November 2016, by Mr McQuaid and Ms Glass following discussions between Mrs McQuaid and the activities staff at Erakor Island Resort.
  1. [138]
    Neither Ms Glass nor Ms Freshwater were able to remember, with any certainty, what time of the day the discussions about the change to the itinerary were held, whereas Mr McQuaid was able to recall, with some ease, the scuba diving students being delayed on their return from the morning activities, as well as the content of his discussions with resort activities staff on the afternoon of 24 November 2016.
  1. [139]
    I note Ms Freshwater was not able to provide the Commission with any detailed commentary about the nature of her discussions with Mr McQuaid or Ms Glass in relation to the proposed change to the itinerary or the replacement activity.
  1. [140]
    She was also unable to recall the time of day when the discussions were held and was unclear about the duration and content of any such discussions, seemingly holding the mistaken belief that Mr McQuaid and Ms Glass had both attended the Blue Lagoon on another occasion.
  1. [141]
    Although I accept Ms Freshwater must have been included at some point in discussions, relating to the change to the itinerary, by Ms Glass and Mr McQuaid, I am not persuaded she was the final decision maker in respect of the change or the proposed alternative activity, nor did she possess on this trip any formal capacity to influence those decisions in any meaningful way.
  1. [142]
    In circumstances where both Mrs McQuaid and Ms Robertson could not personally recall being involved in any discussions about the change in itinerary, I am unable to accept Ms Glass' claims that the decision to travel to the Blue Lagoon was "a collaborative and professional decision made by five teachers".
  1. [143]
    Both the Code and the XCC Child and Youth Risk Management Strategy, as adopted by the Guidelines, reinforce the importance of developing risk management strategies for medium and high-risk activities undertaken outside of school grounds.
  1. [144]
    Although it was not until the tour participants arrived at the Blue Lagoon that they became aware of the rope swing activity, I am also not persuaded that any meaningful attempt was made by Ms Glass, Mr McQuaid or Ms Freshwater to undertake a risk assessment of the Blue Lagoon, any related swimming activities or the rope swing activity before arriving at the lagoon.
  1. [145]
    Given the evidence of all five teachers who participated in the appeal proceedings, it is also not in question that no attempts were made by any of the teachers who were present on the trip to contact either by phone or email ITAP, the XCC principal, the school workplace health and safety manager or the BCE Health and Safety division in order to obtain guidance or advice in determining the suitableness or otherwise of the Blue Lagoon or the rope swing activity as a replacement for the Mele Cascades excursion.
  1. [146]
    Having regard to the CARA guidelines and the evidence of Dr Lee and Mr Kearney, I accept the rope swing activity was a high-risk activity and that factors ITAP would most likely have requested the teachers to consider when undertaking a risk assessment and before approving the rope swing activity could have included:
  • the available medical treatment facilities at the Blue Lagoon;
  • any licensing or insurance held by the venue;
  • qualifications, training and experience of the Blue Lagoon staff;
  • the risks associated with falling from a height off the platform;
  • the risks associated with a person sustaining an injury from weight bearing on a rope;
  • the risks associated with falling into the water; and
  • the risks associated with hidden obstacles or other materials in the water.
  1. [147]
    In respect of any risk assessment undertaken, at its highest, the evidence before the Commission indicates that Mr McQuaid may have tested the water depth of the lagoon while he was swimming and observed (from a distance) the rope swing attached to the tree. However, that was, in my view, the extent of any type of risk assessment, that was undertaken by any of the teachers who were present on the day Ms Glass injured her shoulder.
  1. [148]
    Given the evidence of Ms Freshwater, Mr McQuaid and Ms Robertson, I am also unable to accept Ms Glass' suggestion there may have been a group chat or any discussions held (at all) between Mr McQuaid, Ms Glass or the other teachers who were present at the Blue Lagoon, in relation of the risks associated with the rope swing or how they may have been eliminated or reduced.
  1. [149]
    In my view, there is no reliable evidence in this matter that indicates any meaningful attempt was made by anyone (including Mr McQuaid) to consider, for example, the suitability of the rope, the strength of the tree limb, the risks associated with falling from a height into water, the availability of rescue equipment, the stability of the platform from which Ms Glass jumped or whether or not there were tree roots or other obstacles in the water that may have harmed Ms Glass or other students participating in the activity.
  1. [150]
    I accept Ms Glass voluntarily decided to participate in the rope swing activity. It is clear she was not compelled, nor did she seek (or was granted) permission to access the rope swing activity by Ms Freshwater, who was a member of the school CLT, or any other representative of BCE.
  1. [151]
    I also accept that participating in the rope swing activity did not form part of Ms Glass' work responsibilities or supervisory obligations while travelling in Vanuatu. Moreover, it would have been very difficult, if not impossible, for Ms Glass to both supervise students and participate in the rope swing activity at the same time.
  1. [152]
    On her own evidence, Ms Freshwater acknowledged she had no involvement in the approval of the original application for the Vanuatu travel at the CLT level, had no knowledge of the Guidelines and mandatory procedures, had never travelled to Vanuatu before, had been provided with limited (if any) direction in respect of the nature of her role while in Vanuatu  and did  not directly or  indirectly encourage  Ms Glass to participate in the rope swing activity.
  1. [153]
    As touched on above, having considered all the evidence before the Commission in respect of Ms Freshwater's role and responsibilities on the Vanuatu trip, I am not persuaded, also having regard to the key responsibilities of individual teachers on the trip as set in Form 4,[4] that Ms Freshwater had any meaningful input into, or influence over, the decision to travel to the Blue Lagoon or the decision made by Ms Glass to participate in the rope swing activity.

Submissions

  1. [154]
    For Ms Glass to succeed in her appeal, she must prove on the balance of probabilities that her injury arose out of, or in the course of, her employment and that her employment was a significant contributing factor to the injury.
  1. [155]
    Ms Glass maintains her shoulder injury, sustained as a result of her engagement in the rope swing, arose squarely out of her employment. That is, at the time of the injury, she was doing the work she was employed to do, or at the very least, her participation in the rope swing was incidental to that work.
  1. [156]
    The Regulator argues Ms Glass' case lacks the required causal link between the injury and her employment duties.
  1. [157]
    Moreover, the cause of Ms Glass' injury was her personal and voluntary decision to participate in a recreational activity that formed no part of her role and was not a requirement for her to undertake her functions as a teacher. In this regard, the Regulator maintains Ms Glass was off on a frolic of her own, which took her outside the boundaries of her employment relationship.
  1. [158]
    Furthmore, Ms Glass' employment only provided the background or setting for her injury,[5]occurring in circumstances where BCE had neither approved, authorised, induced nor encouraged her to participate in the rope swing activity.
  1. [159]
    Ms Glass' representatives argue that the question of whether or not her employer was aware of her location at the time of her injury has no bearing on whether Ms Glass was working, or in an interval. Additionally, it was argued that the evidence does not support the contention that Ms Glass was in an interval at the time of her injury.

Analysis

  1. [160]
    The concept of an 'interval' between periods of actual work in which an injury is sustained was explored by the High Court in Comcare v PVYW.[6]
  1. [161]
    Generally, where work is performed at a permanent place of work, an injury occurring after the working day, or between two discrete periods of actual work, is less likely to be seen as in the course of employment. However:

Where an employee is required to live in a remote location for a period until a particular work- related undertaking is completed, the notion of an overall work period or episode of work could apply to that whole period… In such a circumstance, an injury which occurs in an interval between periods of actual work might more readily be understood as being within the course of employment than one occurring after working hours in the ordinary situation.[7]

  1. [162]
    In circumstances where Ms Glass was required for work purposes to travel overseas and undertake duties; where she experienced both periods of work and non-work; and where her injury occurred while undertaking an activity that would not ordinarily fall within the parameters of her normal work functions, I consider the principles from PVYW apply in determining whether the injury is employment related.
  1. [163]
    The majority in PVYW, reflecting on the earlier decision of Hatzimanolis v ANI Corporation Ltd,[8]held that it did not lay down an inflexible rule of universal application such that "absent gross misconduct on the part of a particular employee, an employer who requires an employee to be present at a particular place away from their usual place of work will be liable for any injury which the employee suffers whilst present there".[9]
  1. [164]
    The majority in PVYW further held:

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 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 be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of her employment.

It follows that 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. An employer's inducement or encouragement to be present at a place in not relevant in such a case.[10]

  1. [165]
    More recently, in Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor,[11]Martin P distilled the following principles from PVYW:
  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.
  1. (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.
  1. (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.
  1. (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.
  1. (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.
  1. [166]
    In this appeal, the relevant activity to be considered is the rope swing activity engaged in by Ms Glass, rather than her presence at the Blue Lagoon or in Vanuatu.
  1. [167]
    Having regard to the principles distilled by Martin P and in circumstances where it is accepted Ms Glass' injury occurred when she was undertaking the rope swing, the question to be considered by the Commission in this appeal is whether BCE induced or encourage Ms Glass to engage in the rope swinging activity. If the answer to the question be 'yes', then the injury is within the course of employment. If it be 'no', then it is outside the course of employment.
  1. [168]
    In support of the argument that Ms Glass was not only on duty but wholly-student focused when she was engaging in the rope swing activity, Ms Glass' representatives referred the Commission to her explanation as to why she participated in the activity, namely:

Yes. I can explain why I participated in that activity and many other activities that I do with my students. It’s because it develops right relationships with children, with students. It gives – I guess it gives that sense of cohesiveness to the group too. They get to see what you know, that teachers aren’t just people that are in classrooms, they are people and I guess you get to share the excitement with the students as well. So it develops right relationships with students. It gives them confidence. It gives me confidence in you. It also develops an inter-respect between the teachers and the students.

  1. [169]
    The Commission was also referred to the evidence of Mr Swann, who said:

In Catholic education we have more just those three Rs [reading, writing and arithmetic]. We’ve got respect, reverence, responsibility, right relationships. These are all important things in the teacher dynamic and it’s not just Catholic schools. Any good education would have those. Pope Paul VI said that children listen to witnesses more than teachers, but if they did listen to teachers it’s because the teachers are witnesses. So, you know, they’re – they’re - they do – they get in there, they roll up their sleeves and they work with the students and not simply sit back and – and, you know, observe.

  1. [170]
    Mr Swann told the Commission that an active, participatory approach to teaching was something that he valued. He also spoke glowingly of Ms Glass, noting she was respected and trusted by the school leadership.
  1. [171]
    In this way, Ms Glass' representatives maintain she was actively and commendably fulfilling her teaching role at the time of her injury.
  1. [172]
    In Comcare v Mather,[12]Kiefel J held:

In my view, 'encouragement' is not to be taken as of narrow meaning and limited to some positive action and in specific terms which might lead the employee to undertake a particular activity or attend at a particular place.[13]

  1. [173]
    Her Honour continued:

To be said to have, expressly or impliedly, induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestions, recognition of practices, fostering of participation, or providing assistance and may include the exercise of discretion or choice on the part of the employee. Further attempt at definition would be fruitless. In each case, the question will be whether the attendance at the place at which or the undertaking in which the employee is involved when injured in an interval falls within the ambit of statements, acts or conduct made by the employer and what may be said to logically arise from them. And in each case, importantly, they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed.[14]

  1. [174]
    Notwithstanding Mr Swann's evidence about the importance of teachers taking an active and participatory approach to teaching, the evidence does not, in my view, support a conclusion that Ms Freshwater, Mr Swann in this then role as Principal, or any other representative of BCE induced or encouraged Ms Glass to participate in the rope swing activity, particularly having regard to Dr Lee and Mr Kearney's evidence, which indicated:
    • the ITAP Guidelines required XCC, as part of the travel approval process, to identify all risks and develop an appropriate risk management plan to be put in place;
    • approval for the attendance at the Blue Lagoon or participating in the rope swing activity had not been provided by ITAP or a representative of BCE;
    • that approval for the rope swing activity would not, in any event, have been given had it been sought through ITAP in the first place; and
    • that even if those factors were put to one side, the risk assessment undertaken in respect of the rope swing activity was entirely deficient.
  1. [175]
    For the reasons stated above, I am not satisfied Ms Glass was induced or encouraged, either implicitly or explicitly, to undertake the rope swing activity.
  1. [176]
    Even if I were to be wrong in my view that that facts in this matter support the application of the principles distilled by Martin P in Campbell, I am unable to agree with the submissions put forward by Ms Glass' representatives that she was fulfilling her teaching role at the time she undertook the rope swing activity, or that the rope swing activity was incidental to her work, particularly in circumstances where:
  • the rope swing was not an authorised or approved activity for either staff or students;
  • on her own evidence, Ms Glass made a voluntary choice to participate in the rope swing activity;
  • the rope swing activity was recreational in nature and it was not a requirement of Ms Glass' employment that she participate; and
  • it was physically impossible for Ms Glass to actively supervise students while also participating in the rope swing activity.
  1. [177]
    In reliance on Croning v Workers' Compensation Board of Queensland,[15]it was submitted by the Regulator that the only role played by the employment was  that Ms Glass was in Vanuatu because of her school duties as a teacher. Further, that as a marine studies and maths teacher, no part of Ms Glass' duties required or compelled her to participate in the rope swing activity.
  1. [178]
    As such, the Regulator contends Ms Glass' employment only provided the background or the setting within which the shoulder injury occurred. Moreover, she was on a frolic of her own which took her outside the boundaries of her employment relationship.
  1. [179]
    Whether or not a worker has embarked on a frolic of his or her own will always be a question of fact and degree.[16]
  1. [180]
    In Coulthard v South Australia,[17]Debelle J observed:

While there are cases such as Lloyd v Grace Smith & Co [1912] AC 716 where an employee is liable even though the employee has wrongfully acted solely for his own benefit, generally speaking, an employer is not liable where the employee has acted outside the scope of his employment or has engaged in a frolic of his own. As the House of Lords noted in Kooragang Investments Pty Ltd v Richardson and Wrench Ltd [1982] AC 462 at 473:

'It remains true to say that, whatever exceptions or qualifications may be introduced, the underlying principle remains that a servant, even while performing acts of the class for which he was authorised, or employed, to do, may so clearly depart from the scope of his employment that his master will not be liable for his wrongful acts.'[18]

  1. [181]
    Ms Glass' representatives argue her decision to physically engage in the rope swing activity with the students, rather than to observe, was taken in furtherance of the role she was fulfilling while at the Blue Lagoon. Moreover, that decision was consistent with the teachers' practice on the trip of actively participating in the students' activities, which also included Ms Glass' participation as a scuba diver while students undertook scuba diving activities.
  1. [182]
    The difficulty I have with this submission is that whereas activities such as scuba diving and snorkelling were included in the Form 7 risk assessment documentation provided to, reviewed and eventually approved by ITAP,[19]the high-risk rope swing activity was not included in the risk management strategy, nor was it approved.
  1. [183]
    Further, although I accept the Guidelines contemplate or provide some room for a change to an itinerary once a school trip has commenced due to unforeseen circumstances, the decision to undertake a high-risk rope swing activity, in the absence of seeking the appropriate approvals or conducting a thorough risk assessment, differentiates it from the scuba diving and other activities which were approved by ITAP.
  1. [184]
    In my view, the evidence supports a finding Ms Glass made a personal and voluntary decision to participate in a recreational activity that fell well outside the ambit of her teaching duties and responsibilities.
  1. [185]
    Putting aside the question as to whether it was appropriate, in any event, for the students to have participated in the rope swing activity, I accept that it was not necessary for Ms Glass to participate in the activity in order to supervise the students.
  1. [186]
    In my view, Ms Glass has failed to demonstrate that her employment was the real or effective cause of the injury. Certainly, it was the case that other teachers and students were present at the time she injured her shoulder, but I am not satisfied Ms Glass was undertaking her functions as a teacher at the time she decided to participate in the rope activity, nor am I satisfied the rope swing activity was, for all the reasons touched on above, incidental to her work.

Significant contributing factor

  1. [187]
    In Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor,[20]

Martin P held:

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.[21]

  1. [188]
    The requirement that employment be a significant contributing factor was also discussed by Keane JA (with whom de Jersey CJ and Muir J agreed) in Newberry v Suncorp Metway Insurance Ltd:[22]
  1. [27]
    It cannot be disputed that, when s 32 of the WCRA speaks of "employment" contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to "what the worker in fact does during the course of employment". The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.

  1. [41]
    … I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been “a significant contributing factor to the injury”. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment”.
  1. [42]
    Further, there is no warrant in the language of s 32 of the WCRA for reading the words “if the employment is a significant contributing factor to the injury” as lessening the stringency of the requirement that the injury “arise out of the employment”, as was suggested in the course of argument on the appeal. 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. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.
  1. [189]
    That is, for employment to be a significant contributing factor to the injury, the employment must be important or of consequence,[23]and there must be some connection between the employment and the injury.[24]
  1. [190]
    Ms Glass' representatives maintain the exigencies of her employment contributed in a significant way to her injury. That is, she was in Vanuatu and, at the time of the injury, at the Blue Lagoon, discharging her role in facilitating the students' engagement in the rope swing activity and ensuring their safety.
  1. [191]
    I cannot agree.
  1. [192]
    The trip to the Blue Lagoon and participation on the rope swing had not been authorised by BCE, ITAP or a properly authorised representative of XCC.
  1. [193]
    Permission was neither requested nor granted by ITAP or the leadership team at the school to participate in the rope swing activity.
  1. [194]
    Participation in the rope swing activity did not form part of Ms Glass' duties as a teacher, nor was the activity incidental to those duties.
  1. [195]
    Again, it is the case that other teachers and students were present at the time of the injury, however I am satisfied it was Ms Glass' voluntary decision to participate in the rope swing activity, which was the significant contributing factor to her shoulder injury.

Findings

  1. [196]
    I make the following findings:
  • Ms Glass was a worker for the purposes of the Act;
  • Ms Glass suffered a shoulder injury on 24 November 2016 whilst swinging from a rope at the Blue Lagoon in Vanuatu;
  • I am not satisfied, on the balance of probabilities, that the evidence before the Commission is sufficient to conclude that  the injury sustained  by Ms Glass on 24 November 2016 arose out of, or in the course of her employment with the appellant; and
  • I am not satisfied, on the balance of probabilities that Ms Glass' employment was a significant contributing factor to her injury.
  1. [197]
    I am satisfied that the shoulder injury sustained by Ms Glass on 24 November 2016 was not an injury within the meaning of s 32 of the Act.

Orders

  1. [198]
    I make the following orders:
  1. The appeal is dismissed.
  1. The decision of the Respondent dated 26 June 2017 is affirmed.
  1. The Appellant is to pay the Respondent's costs of and incidental to the appeal.

Footnotes

[1] Exhibit 10.

[2] Exhibit 8.

[3] Exhibit 11.

[4] Exhibit 10.

[5] see Croning v The Workers’ Compensation Board of Queensland (1997) 156 QGIG 100.

[6] [2013] HCA 41 ('PVYW').

[7] Ibid at [29].

[8] (1992) 173 CLR 473.

[9] [2013] HCA 41 at [9], [11].

[10] Ibid at [38]-[39].

[11] [2015] ICQ 016 at [10] ('Campbell').

[12] (1995) 56 FCR 456.

[13] Ibid at 462.

[14] Ibid.

[15] (1997) 156 QGIG 100.

[16] Newman v Andgra Pty Ltd (2002) 171 QGIG 883.

[17] (1995) 63 SASR 531.

[18] Ibid at 554.

[19] Exhibit 11.

[20] [2016] ICQ 001.

[21] Ibid at [24].

[22] [2006] 1 Qd R 519 (emphasis added, citations omitted).

[23]Q-COMP v Green (2008) 189 QGIG 747, 751; Luxton v Q-Comp (2009) 190 QGIG 4, 6; Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115, 119.

[24]Graham Douglas Steward v Q-COMP (C/2010/52) at [15].

Close

Editorial Notes

  • Published Case Name:

    Glass v Workers' Compensation Regulator

  • Shortened Case Name:

    Glass v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 46

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    07 Mar 2019

Appeal Status

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