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Stockwell v Workers' Compensation Regulator[2025] QIRC 100

Stockwell v Workers' Compensation Regulator[2025] QIRC 100

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Stockwell v Workers' Compensation Regulator [2025] QIRC 100

PARTIES:

Stockwell, Paula Cherie

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2022/113

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

9 April 2025 

HEARING DATE:

9 March 2023

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

  1. The Appeal is allowed.
  1. The decision of the Respondent dated 3 June 2022 is set aside.
  1. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.
  1. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT FACTOR – OTHER MATTERS – where the appellant, a worker, appeals decision of the respondent to reject a workers' compensation claim – where the appellant had to use the public bathroom before her shift commenced – where the appellant suffered an injury – where WorkCover Queensland rejected the application for compensation – where the respondent confirmed the decision of WorkCover Queensland – 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 the course of her employment – the appeal is allowed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11, s 32, s 34, s 35

CASES:

Comcare v PVYW (2013) 250 CLR 246

Da Ros v Qantas Airways Ltd [2010] NSWCA 89

Glass v Workers' Compensation Regulator [2020] ICQ 1

Kavanagh v Commonwealth (1960) 103 CLR 547

Mayne v South Kalgurli GM Ltd (1907) 9 WALR 152

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

Qantas Airways Limited v Q-COMP & Blanch (2009) 191 QGIG 115

Stewart v Metropolitan Water, Sewerage & Drainage Board (1932) 48 CLR 216

Telstra Corporation Limited v Bowden (2012) 206 FCR 207

Waugh v Blackwood (2015) 251 IR 126

Weaver v Tredegar Iron & Coal Co Ltd [1940] AC 955

APPEARANCES:

Mr P.N. Nolan of counsel instructed by Maurice Blackburn Lawyers for the Appellant

Mr P.B. O'Neill of counsel directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Introduction

  1. [1]
    The Appellant, Ms Paula Stockwell, appeals a decision of the Workers' Compensation Regulator ('the Regulator') confirming the decision of WorkCover Queensland ('WorkCover') to reject Ms Stockwell's application for compensation. 
  1. [2]
    WorkCover rejected Ms Stockwell's claim for compensation on the basis that Ms Stockwell did not sustain an 'injury' in accordance with ss 32, 34(1)(c) and 35 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act').
  1. [3]
    The issues in dispute arise in the context of Ms Stockwell being injured after arriving at her workplace and as she then walked to the public bathroom facilities prior to her commencement time of 9.00am.

Issues for Determination

  1. [4]
    The parties accept that at all material times Ms Stockwell was a 'worker' for the purposes of the WCR Act.[1] Further, the Regulator concedes that Ms Stockwell sustained a personal injury to her left knee.
  1. [5]
    The Appellant's Statement of Facts and Contentions identifies five alternative grounds upon which it is argued that Ms Stockwell sustained an injury for the purpose of the WCR Act as follows:
  1. because the injury arose out of, or in the course of, her employment and that her employment was a significant contributing factor to the injury within the meaning of s 32(1) of the WCR Act; or, in the alternative
  2. because the Appellant was at her place of employment and was engaged in an activity in connection with the employer's trade or business, thereby falling within the meaning of "injury" under s 34(1)(a) of the WCR Act; or, in the alternative
  3. because the Appellant was away from the place of employment in the course of her employment, thereby falling within the meaning of "injury" under s 34(1)(b) of the WCR Act; or, in the alternative
  4. because the Appellant was temporarily absent from the place of employment during an ordinary recess, thereby falling within the meaning of "injury" under      s 34(1)(c) of the WCR Act; or, in the alternative
  5. because the Appellant was still on a journey between work and home, thereby falling within the meaning of "injury" under s 35(1)(a) of the WCR Act.
  1. [6]
    In her written submissions,[2] the Appellant stated that she no longer pressed that her injury occurred during an "ordinary recess",[3] however, she submitted that she maintained the remaining three bases. As can be seen from [5] above, the Appellant relied on five contentions which would subsequently leave four remaining bases. 
  1. [7]
    However, the Appellant's written submissions went on to deal with, in summary, the following three alternative arguments:
  1. that the injury was suffered in the course of the employment and that the employment was a significant contributing factor to the injury;[4]
  1. that the injury arose out of the Appellant's employment and that the employment was a significant contributing factor to the injury;[5] and
  1. that the injury was suffered on a journey between the worker's home and place of employment.[6]
  1. [8]
    The submissions did not address in any meaningful way the contentions that the injury arose in the course of the employment by the operation of either s 34(1)(a) or s 34(1)(b) of the WCR Act. However, because of the ultimate finding that is made that the injury is one that falls within s 32(1) of the WCR Act, the Appellant's failure to address all of the contentions has not proved fatal to her appeal.

Relevant Statutory Provisions 

  1. [9]
    Part 4, Division 6 of the WCR Act deals with injuries, impairment and terminal condition.
  1. [10]
    Relevantly, Part 4, Division 6, Subdivision 2 provides for the meaning of injury. Section 32, which falls within Subdivision 2, relevantly states:

32Meaning of injury

  1. An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  1. However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. Injury includes the following—
  1. …
  1. an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
  1. a personal injury;

…

  1. [11]
    Part 4, Division 6, Subdivision 3 of the WCR Act provides when an injury arises out of, or in the course of, employment. Sections 33 to 36 fall within Subdivision 3.
  1. [12]
    Section 33 of the WCR Act provides that Subdivision 3 does not limit the circumstances in which an injury to a worker arises out of, or in the course of, the worker's employment.
  1. [13]
    Section 34 of the WCR Act provides when an injury is taken to arise out of, or in the course of, the worker's employment while at or after the worker attends the place of employment as follows:

34Injury 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—
  1. 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
  1. while the worker is away from the place of employment in the course of the worker's employment; or
  1. 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.
  1. For subsection (1)(c), employment need not be a contributing factor to the injury.
  1. [14]
    Section 35 of the WCR Act sets out when an injury is taken to arise out of, or in the course of, the worker's employment if the event happens when a worker is on a journey as follows:

35Other circumstances

  1. An injury to a worker is also taken to arise out of, or in the course of, the worker's employment if the event happens while the worker—
  1. is on a journey between the worker's home and place of employment; or
  1. is on a journey between the worker's home or place of employment and a trade, technical or other training school—
  1. that the worker is required under the terms of the worker's employment to attend; or
  1. that the employer expects the worker to attend; or
  1. …
  1. For subsection (1), employment need not be a contributing factor to the injury.

…

  1. [15]
    The term "place of employment" is defined in Schedule 6 of the WCR Act as follows:

Place of employment means 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.

Relevant Background

  1. [16]
    At the outset of the hearing the Appellant tendered a Statement of Admitted Facts,[7] which sets out the following relevant agreed facts:[8]
  1. The Appellant has been employed as a showroom consultant by KWB Group trading as Kitchen Connections (Kitchen Connections) since July 2017.
  1. The Appellant worked at Kitchen Connections showrooms in a number of locations in South East Queensland, namely Tweed Heads, Robina, Helensvale and Ashmore.
  1. The Appellant's duties included servicing customers in those showrooms, answering sales calls and general housekeeping of the showrooms.
  1. The Appellant was initially employed on a full-time contract but signed a new employment contract with the Kitchen Connections on 11 December 2019, the material terms of which were as follows:
  1. the Appellant's employment was governed by the terms of the modern award being the General Retail Industry Award 2010 (Award);
  2. the Appellant's classification under the Award was a Level 2;
  3. the Appellant was employed as permanent part-time Showroom Consultant;
  4. the Appellant's contracted days and time of work were:

30 hours per week – over any 4 days of the week

7.5 hours per day.

Initially Friday, Saturday, Sunday, and Monday.

  1. In November 2021, the Appellant commenced working from the Kitchen Connection showroom located in the Homeworld Helensvale Shopping Centre (Showroom).
  1. There were five employees based in that Showroom. Two are full-time permanent employees, including the showroom manager Alicia Buono, and two were part-time permanent employees which included the Appellant. In addition, there was one casual employee who works as and when required.
  1. The Showroom was open between 9am to 5pm Monday to Saturday, and between 10am and 4pm on Sunday.
  1. Kitchen Connections has an online booking system where customers can book for a free consultation via the website.
  1. In addition, customers walk through the showroom throughout the day.
  1. There were no rest room facilities in the showroom, and it was the employer's expectation that showroom staff were required to use the public toilets in the Shopping Centre.
  1. On 15 December 2021, at approximately 8.45am, the Appellant was traveling from the Showroom to the public bathroom, and slipped on a puddle approximately half way between the showroom and the bathroom. The puddle is depicted as follows:

Stockwell v Workers' Compensation Regulator [2025] QIRC 100

  1. The Appellant fell forward onto the ground injuring her knee, face and shoulders. She tried to get up from the ground but could not move. She looked around to see if anyone could assist her. She rolled over and retrieved her phone from her pocket to call her manager, Alica.
  1. At about 8.55am, Alicia and her colleague Samantha came to help Paula and called an ambulance.

…

  1. As a result of the above fall, the Appellant sustained an injury to the left knee.
  1. The Appellant had had surgery on 17 December 2021 by Dr Liu, Orthopaedic Surgeon in the form of an open reduction and internal fixation of the patella on the left knee.

…

  1. The parties accept that, at all material times, the Appellant was a "worker" as defined in section 11 of the Act.
  1. The parties accept that, at all material times, the Appellant sustained a "personal injury" within the meaning of section 32 to her left knee on 15 December 2021 (Left Knee Injury).

Evidence

  1. [17]
    Despite the agreed facts, there remains several factual disputes to be determined by the Commission.

Was the Appellant Expected to Attend the Workplace Prior to the Commencement of her Rostered Start Time of 9.00am?

  1. [18]
    It appears to be the Regulator's case that the Appellant was not required to attend the workplace until her shift commenced at 9.00am. Consequently, as the Appellant arrived at work before the commencement of her workday and the injury occurred approximately 15 minutes before her rostered start time of 9.00am, the injury did not arise out of, or in the course of, her employment.
  1. [19]
    The Appellant gave evidence that she had worked for Kitchen Connection since 2017. Prior to commencing at the Homeworld Helensvale showroom ('the Showroom') in December 2021, she worked at the Ashmore showroom and before that at the showroom at the Home + Life Robina Centre.
  1. [20]
    The Appellant resided at Currumbin and estimated that the drive between Currumbin and Helensvale took approximately 40 minutes, although it was unpredictable because of traffic. For that reason, the Appellant's evidence was that she used to give herself plenty of time to arrive at work in order to not be late for work.[9]
  1. [21]
    Under cross-examination the Appellant accepted that there was no contractual term or condition, or oral or written direction issued by her employer requiring her to attend the workplace at 8.45am for a 9.00am commencement time.[10]
  1. [22]
    Rather, the Appellant's evidence was that in order to prepare properly for the commencement of her work so that she was ready to undertake her professional duties at the commencement of her rostered start time she would need to arrive before 9.00am.
  1. [23]
    Ms Stockwell's evidence was that she would arrive at work and prepare herself for the day. This process included entering the Showroom, starting up the computer, putting her bag away, putting her lunch in the lunchroom, putting her badge on and attending the bathroom, if necessary, before her shift commenced at 9.00am.
  1. [24]
    Ms Stockwell says that she undertook such steps in order to be ready to commence work at 9.00am.
  1. [25]
    In this regard, the Appellant's evidence, under cross-examination, was that it would have been unprofessional to arrive at 9.00am as follows:[11]

Yes. And what I'm suggesting to you is that it would be the call centre that would make that booking?---Well, maybe that's a different interpretation, but all I know is it comes up on our computers that we've got a booking at 9 o'clock, which is the reason we had to be there prior to 9 o'clock. You couldn't have someone standing at the door at 9 o'clock. Just a moment, do you mind waiting? You've got your bag; you've got your lunch; it just doesn't make sense.

Well, the next question on from the proposition that I've put to you is that when the call centre would actually book in these appointments – these web-based appointments, that they wouldn't do so at 9 o'clock in the morning, that the earliest that they would book it in would be 9.30?---But that's what you would imagine, but it doesn't happen like that. It doesn't always happen. And, you know, that – it might not happen every day of the week, but I'd been there long enough to know that it did happen.

What I'm put - - -?---I can't be opening the door with someone standing there, with a child, and you say just a moment. It's so unprofessional. It's so unprofessional.

And - - -?---We just didn't operate like that.

  1. [26]
    Further, under cross-examination, it was put to the Appellant that it was her own expectation, instead of that of her employer, that she be ready and fully prepared to commence work at 9.00am as follows:[12]

When you say "it was always the expectation", how do you say that there was an expectation? How was that communicated to you?---Well, I think I've just – I've just explained what would happen if there was a customer at the front door when you opened it, how unprofessional it would look for the job we've got to do, to make that customer feel like they – they were important, for their money that they were expected to spend.

But what you're talking about, with respect, Ms Stockwell – and correct me if I'm misunderstanding you - - -?---Sure.

- - - but what you're talking about is a professional attitude that you hold about your role – what's required in your role and the respect that you need to show to customers to be prepared. All of that's personal, coming from your work ethic, isn't it?---Well, I agree.

And I come back, then, to the question that I put to you originally. Where did the expectation come from, or was it an expectation that you were placing on yourself?

HER HONOUR: Sorry, could you just rephrase that? What was the expectation, so that it's clear?

MR O'NEILL: The expectation about being there early to be prepared.

WITNESS: No. It's not just placed on me. It's the expectation that the company give you.

MR O'NEILL: Well, this is what I'm trying to get to. The nub of the question is where – how was that communicated to you? Where did you understand that expectation coming from?---From – well, I guess it comes from the – the ethos of the company.

Sorry?---The ethos. You know, like, the – the – the way – it's always to be professional, be customer-ready. It's just part of the – you've got to be professional, always be – appear to be professional. It's a professional company. You know, it's – it's – they actually do professional kitchens, so you want to uphold – and you're – it's constantly drummed into you. So it's all part of the professionalism of the company.

  1. [27]
    Evidence was also given by Mr Aaron Ball who was the Appellant's manager for a period at the Robina showroom.
  1. [28]
    Mr Ball's evidence was that the employer did provide an oral instruction that staff begin to arrive for a 9.00am shift from 8.45am.[13] He recalled being provided that instruction at a monthly meeting and that he subsequently instructed the Appellant to attend at 8.45am for a 9.00am shift.
  1. [29]
    This contradicted the Appellant's evidence to a degree insofar as she did not give evidence that she had been given an oral direction to attend work at 8.45am. Although, the Appellant's evidence was that she understood that she was to arrive before the commencement of her 9.00am shift.
  1. [30]
    In any event, Mr Ball's evidence was that staff at the Robina showroom, including the Appellant, would arrive before the showroom opened in order to prepare themselves for the working day when it commenced at 9.00am.
  1. [31]
    The relevance of Mr Ball's evidence is somewhat limited in any event as it relates to what historically occurred at the Robina showroom during periods between 2017 and 2020.
  1. [32]
    In addition to stating that an oral direction had been given to staff, Mr Ball also gave evidence that Kitchen Connection used CCTV footage to monitor staff arrival times. No other witness gave evidence in respect of these matters, and it was denied being used for that purpose by the Kitchen Connection witnesses.[14] It is not the Appellant's case that she was provided an oral direction of the nature described by Mr Ball nor was it her case that her arrival at work was monitored by Kitchen Connection using CCTV footage. Given the inconsistencies, no further regard will be had to Mr Ball's evidence in that respect.
  1. [33]
    The Regulator called Ms Alicia Buono who was the manager at the Showroom at the time of the Appellant's accident. Ms Buono's evidence, as the manager of the Showroom, was relevant to the expectations in place at the Helensvale showroom at the relevant time.
  1. [34]
    Ms Buono gave the impression that she, like the Appellant, was a diligent and professional employee. Indeed, in her role, Ms Buono would often arrive between 7.30am and 8.00am for a rostered commencement time of 9.00am.
  1. [35]
    Ms Buono attested to the Appellant's professionalism and that the Appellant was:[15]

… a professional. You know, she's a wonderful woman. She was always to work early to start her work day at 9 o'clock.

  1. [36]
    Ms Buono's evidence was that her expectation as the store manager was that the staff be customer focused and ready to commence work from 9.00am. In order to be ready at 9.00am, Ms Buono accepted an employee would need to undertake steps to prepare for the commencement of work as follows:[16]

So do you accept that in order to be ready by 9 o'clock - - -?---Mmm.

- - - a consultant would need to log into the computer?---Yes, I accept that.

Yeah. And I can see you've got a badge there. Do the consultants have a badge?---Yes.

Yeah. They have to put the badge on? They have to look presentable?---Absolutely.

They have to put their bag down, put it away?---Correct.

They have to put their lunch in the fridge?---Correct.

If they need to go to the toilet before 9 o'clock, they should go to the toilet?---That's correct.

And the expectation is that consultants should be ready to go, badge on, 9 o'clock?---Yes.

  1. [37]
    It is apparent from the above extract of the evidence that Ms Buono accepted that employees were expected to undertake the steps necessary to prepare themselves for the working day including by going to the toilet if they required before 9.00am. The matter accepted by Ms Buono in the above extract also accords with Ms Stockwell's evidence of the steps she took, or was in the process of undertaking, at the time the injury occurred.
  1. [38]
    Ms Buono gave evidence that managers, consultants and customers support managers were each given a key to the Showroom which permitted them to enter the Showroom before the commencement of their working day at 9.00am.[17]
  1. [39]
    Ms Buono's evidence was also consistent with the Appellant's evidence regarding the expectation from the employer that staff be customer focused from the time the doors to the Showroom opened. Her evidence in this regard was as follows:

… We're really customer focused so when the doors open at 9 o'clock, really serving customers is our main priority at Helensvale. And customer service is absolutely on the forefront of everything that we do…

  1. [40]
    Specifically, with respect to the Appellant, Ms Buono's evidence was that the Appellant would always be ready for work at 9.00am. Her evidence was that "… if we had walk in customers, she would be ready."[18]
  1. [41]
    Ms Buono's evidence, however, was that it was not just the Appellant who arrived before 9.00am to prepare to commence for the workday but that the other staff would also usually arrive "10, 15 minutes early."[19]
  1. [42]
    Ms Buono accepted the proposition that it would be undesirable for a showroom consultant to be entering the premises of the Showroom at the same time as potential customers at 9.00am.[20]
  1. [43]
    The Regulator also called Mr Lee Hunter who was a previous Store Manager and then Regional Sales Manager for Kitchen Connection and Mr Robert Foster who was the Queensland State Manager. Both Mr Hunter and Mr Foster were adamant, in their evidence-in-chief, that it was not necessary for showroom consultants to be present at the workplace before the showroom opened at 9.00am.
  1. [44]
    In his role as Regional Manager, Mr Hunter travelled from store to store in the course of his duties. His evidence was that when he visited the Helensvale store, he would arrive anywhere from 8.00am to 9.00am.[21]
  1. [45]
    Mr Hunter was asked what his expectation was, when he worked as a manager, about the time the showroom consultants would start. His evidence was, "yeah, so my girls used to start at 9 o'clock."[22]
  1. [46]
    It is presumed Mr Hunter's reference to "my girls" is a reference to the "showroom consultants."
  1. [47]
    Mr Hunter's evidence differed from Ms Buono's evidence in regard to the expectation that a showroom consultant arrive prior to the store opening. Relevantly, his evidence was that:[23]

That's up to them. Their role was to start at 9 o'clock. The showroom doors opened for business at 9 o'clock and they're ready to rock and roll at 9 o'clock when the doors open.

  1. [48]
    Under cross-examination Mr Hunter did not accept the proposition that it would be undesirable for a showroom consultant to arrive at work at 9 o'clock.[24]
  1. [49]
    Mr Hunter's evidence was that if an employee arrived for work at one minute past 9.00am that he would not consider them late for work.[25] In this regard, it is apparent that Mr Hunter's understanding of the expectation regarding the arrival of staff for the commencement of their shifts differed, relevantly, from Ms Buono's evidence in this regard.
  1. [50]
    With respect to that difference, I prefer Ms Buono's evidence as to the expectation around when staff were to arrive in anticipation of the commencement of their shift over Mr Hunter's evidence, on the basis that Ms Buono was the manager at the Helensvale showroom and she was the one who daily directly supervised and communicated with staff, including the Appellant.
  1. [51]
    Similarly, Mr Foster's evidence was that there was no expectation for an employee to be ready to work at 9.00am. Relevantly, he stated:[26]

Okay. So you don't consider it an issue for them to arrive at 9 am - - -?---Yeah. 

- - - put their lunch in the fridge, turn on their computer, maybe go to the toilet if they need to - - -?---Not a problem.

- - - and if that's at 9.15, that's not a problem for you?---That's not a problem, yeah.

HER HONOUR: May I ask, then, why is the employee rostered to commence at 9 am?---Because that's the desired time that we – your Honour, that we would like them there, but we - - -

Desired time or required time?---Required time, so – but we – we are – we're a flexible business. We're not – you know, we – our people are very good to us and they do a very good job, so we have flexibility around – around people, as – as any work environment would – would want or expect, really.

  1. [52]
    However, Mr Foster's position altered when a scenario of a showroom consultant who arrived consistently after the showroom opened at 9.00am was put to him. Mr Foster's evidence under cross-examination in this regard was as follows:[27]

MR NOLAN: I just want to clarify this: when you say if they're late five days out of the week, that would be a bit of a concern, if that person – that particular hypothetical showroom consultant - - -?---Yeah.

- - - arrived at 9 am - - -?---Yeah.

- - - every day then spent 15 minutes - - -?---Yeah.

- - - putting their bags down - - -?---Yeah.

- - - going to the toilet, getting a coffee and then wasn't actually serving any customers – or be ready to serve any customers until 9.15, say - - -?---Yeah. Okay.

- - - if they did that every day, you wouldn't have an issue with that?---Working for us every day for the 365 days or – I – we're a flexible business. I don't – I don't understand - - -

Yeah?--- - - - where you're coming - - -

Well, I just want – well, the distinction is this, Mr Foster: the requirement - - -?---Yeah.

- - - right, is different to whether you are flexible, right?---Yeah.

But the contracted hours that - - -?---Yeah.

- - - you say - - -?---Yeah.  

- - - for the staffroom consultants - - -?---Yeah.

- - - are that they need to be ready to start working at 9 am. So if they're having to do personal things to be ready to start working every day and, effectively, start working at 9.15 - - -?---Yeah.

- - - that would be technically late in your - - -?---Okay. Yeah.

Yes?---Yeah.

  1. [53]
    The concession ultimately made by Mr Hunter is significant for several reasons. Firstly, Mr Hunter accepts that should an employee arrive at 9.00am but then take time to prepare for the day, they would be considered late for work if they were not effectively commencing work until 9.15am.
  1. [54]
    Secondly, it places his earlier evidence about it being a "flexible workplace" into context. That is if an employee arrived after 9.00am occasionally then that would not be an issue, however, if an employee regularly arrived at 9.00am and then had to prepare themselves for the working day that would be considered a late arrival. An inference able to be drawn from this evidence is that there was an expectation that employees ordinarily were expected to arrive at such a time so as to commence their working day at 9.00am. These concessions are ultimately consistent with the tenor of the evidence of the Appellant and Ms Buono.
  1. [55]
    On the evidence of the Appellant and Ms Buono, I am satisfied that it was expected that a showroom consultant be professional and customer focused, and in order to do that they must arrive at work and prepare themselves, to commence work when the showroom doors open at 9.00am. Consistent with that expectation was the evidence that the Appellant and other staff at the Showroom would ordinarily arrive between 10 to 15 minutes earlier than their commencement time. Indeed, Kitchen Connection provided a key to staff to allow them to enter the workplace before the Showroom doors were unlocked to the public at 9.00am.
  1. [56]
    Further, it is consistent with this expectation that on the day of the Appellant's injury which, it is agreed, occurred at 8.45am, that not only was the Appellant present at work before 9.00am but so was Ms Buono and a colleague, Samantha, who were rostered to work that day as they came to the aid of the Appellant when she fell.
  1. [57]
    Because of that expectation it is considered that other evidence adduced during the hearing, regarding the sales numbers in December or about how often there would be either a web generated appointment or walk-in customers at 9.00am, is of limited relevance. The reason being is that the Appellant was rostered to and was required to be ready to start work at the time the Showroom opened at 9.00am. Consequently, as at 9.00am, the Appellant was expected to be in a position to be ready and able to perform her customer focused role. As was ultimately conceded by Mr Hunter, an employee would be considered late if they were not ready to start work at 9.00am having yet to prepare themselves for the commencement of work.

The Location of the Bathroom the Appellant was en route to at the time of the Injury

  1. [58]
    A further subsidiary issue was raised by the Regulator with respect to the location of the bathroom that the Appellant was en route to at the time of the injury.
  1. [59]
    Relevantly, it was not in dispute that there were no bathrooms in, or adjacent to, the Showroom and that, consequently, Kitchen Connection required its employees to access the public bathrooms available within the shopping centre.
  1. [60]
    Tendered into evidence was a map identifying the location of the Showroom within the shopping centre including the location of the public bathrooms within the vicinity of the Showroom.[28] Relevantly, there were two public bathrooms located in proximity of the Showroom.
  1. [61]
    One of the bathrooms was able to be accessed by using the front door to the Showroom ('Bathroom A'). The other bathroom was able to be accessed when using the backdoor from the staff kitchen in the Showroom ('Bathroom B').
  1. [62]
    There was no direct evidence about the length of distance to each of the bathrooms. The map tendered does not appear to be to scale.[29] It was put to the Appellant in cross-examination that Bathroom A was approximately 70 to 100 metres away from the Showroom's front door. The Appellant responded that she had not measured the distance, but it was possible.[30] The approximate distance to Bathroom B was not put to the Appellant by the Regulator. Accordingly, the distance to each of the respective bathrooms was not able to be resolved on the evidence before the Commission. However, it can be inferred from the evidence, that when leaving the front door of the Showroom, Bathroom A is a lesser distance than Bathroom B is from the back door of the Showroom.
  1. [63]
    The Regulator did not lead any evidence to establish that Kitchen Connection required its employees to use a particular bathroom. 
  1. [64]
    The Appellant's evidence was that she was shown Bathroom B by another employee when she first attended the Showroom as follows:[31]

And in the process of exiting the showroom, walking down the laneway where you had the unfortunate fall, there was no requirement of your work duties, as a showroom consultant for Kitchen Connection, for you to be in that laneway?---No. In fact, I was actually shown that bathroom. I had no idea it was there. I was shown that – that bathroom by one of the other consultants at a previous time when I'd already been there. Not in December. It was – must have been November – that that was November, the bathroom, because the other one was open to the public and it got – used to get really busy. You'd have to wait. And it used to get very dirty.

  1. [65]
    The Appellant's evidence is that upon arriving at the Showroom she attempted to start up the computer and while she was waiting for the computer to start up, she took her lunch out into the staff kitchen area. At that point she decided that she needed to use the bathroom. Her evidence was that it was easier to use Bathroom B, when leaving the Showroom by the backdoor and then walking down the laneway towards that bathroom, rather than to walk back through the Showroom, unlock the front door and re-lock it in order to go to Bathroom A.[32]
  1. [66]
    Under cross-examination, the Appellant explained her logic for choosing to attend Bathroom B as follows:[33]

Okay. And, indeed, the evidence that you've given about your actions on the 15th of December 2021, correct me if I'm wrong but you've indicated that you weren't, in fact, able to log on to the computer?---No, but I didn't know that until later. I found out later that it didn't – it didn't work. Like, even though I – even though I logged it in, it was ages just spinning around but just – and that was when I took my lunch out to the kitchen and from there, I just – I was – needed to go to the – to the toilet so I went to the toilet at that – I just went because, I mean, I needed to go to the bathroom. And it was easier out the back where the kitchen and the fridge was than going out the front, where I had to unlock the door, make sure it was locked again and then go to the bathroom that was across the way.

…

But – but see, this explanation, I'm trying to get to the bottom of it because it – it really, with respect, doesn't make sense because if you've got a key, you have capacity to lock the front door behind you, don't you?---Of course.

And so, therefore, your concerns about somebody trying to come into the store after seeing you leave amount to – to nothing because the door would be locked?---With respect, for me, I put my food in the fridge and I simply walked out the back door to the bathrooms. It's – it just made sense to me. I didn't stand there thinking you know what, I'll go out the front door because if I go out the back door, it's going to ruin my life. I just went out the back door and that decision has had a massive impact on my life. It's not the only and first time I've ever done it. They were the bathrooms that I used a lot simply because they were cleaner, they were better, you know, like I just – you can see on that diagram, if I was in the kitchen, how much simpler it was just to do that.

  1. [67]
    The Appellant confirmed under cross-examination that the ground on the path to the bathroom had water and algae emanating from a pipe that had previously been present when she had walked to Bathroom B.
  1. [68]
    The Appellant's evidence in this regard was as follows:[34]

And are we able to obtain an estimate from you about approximately what time this was? Was it about 8.50?---Yes, it would have been by then, I guess, but can I just say that that – that water kept gushing so when I first stepped over it, it was quite narrow but as I stepped over it, it gushed out. So, therefore, I miscalculated it. I've actually – when I was sitting at the side of the wall and I was having to wait quite a while for the ambulance, I managed to get it on live video of what it was doing

  1. [69]
    I am satisfied that the evidence established that Kitchen Connection did not provide a bathroom within the Showroom for its employees and, consequently, required its employees to access the public toilets made available within the shopping centre. On the evidence there were two available public toilets that could be accessed from the Showroom. Kitchen Connection did not issue any direction to their employees about which bathroom should be used. Accordingly, it was available for staff to use either Bathroom A or Bathroom B when they were at work.
  1. [70]
    The Appellant explained that she chose to access Bathroom B as she considered it to be more readily accessible when leaving from the backdoor of the Showroom. That is consistent with the map which evidences that Bathroom B is at the end of the laneway that the backdoor exits onto. The Appellant's explanation for choosing to access Bathroom B is logical and reasonable in the circumstances.

Consideration

  1. [71]
    As referred to in [5] above, the Appellant contends that she has suffered an injury in reliance on alternative contentions. The first of those contentions is that she suffered an injury within the meaning of s 32(1) of the WCR Act.

Is the Injury one within the meaning of s 32(1) of the WCR Act?

  1. [72]
    The Appellant contends that the injury falls within an injury for the purpose of s 32(1) of the WCR Act on the following basis:
  1. the injury is an injury "arising out of or in the course of" the Appellant's employment within the meaning of s 32(1) of the WCR Act, in that:
  1. the injury occurred after the Appellant entered the premises on which her employment was situated,[35] during a time whilst she was there for the engagement of work duties;[36]
  1. the injury was caused by the Appellant slipping on a puddle situated at the traverse between her workplace and the bathrooms that the employees were expected to use. The injury occurred from a hazard at the place where the employer placed the Appellant,[37] and her employment brought her to the particular locality where that danger arose.[38]
  1. the Appellant's employment is a "significant contributing factor" to the injury pursuant to s 32(1) of the WCR Act because:
  1. the employer did not provide its employees with a bathroom, and as such they were required to use the public toilets in the shopping centre;
  1. on the journey between her workplace and those toilets, she slipped on a water hazard that she was confronted with during that traverse; and
  1. in the premises, the incident to which she was exposed in the course of her employment, was a state of affairs to which she would not otherwise have been exposed.[39]
  1. [73]
    The Respondent contends that the Appellant's injury did not arise out of, or in the course of the Appellant's employment with Kitchen Connection because:
  1. the Appellant had not commenced work for the day and was not due to commence until 9.00am;
  2. at the time that the Appellant sustained the injuries she was not performing any of her work duties or anything incidental to her work duties; and
  3. at the time that the Appellant sustained her injuries she was on an undertaking of an entirely personal and private nature not related to her work duties with Kitchen Connection.
  1. [74]
    For the same reasons set out in the preceding paragraph, the Respondent contends that the Appellant's employment was not a significant contributing factor to her injury.
  1. [75]
    The Respondent further contends that at the time that the Appellant sustained the injury:
  1. the Appellant had left the premises on which her employer was situated;
  2. the Appellant was not undertaking any of her work duties or in fact anything incidental to those duties; and
  3. the Appellant was not in fact preparing herself for the engagement of work duties but was in fact engaged on a frolic of a personal nature unrelated to her employment duties.
  1. [76]
    As is evident from the Regulator's submissions, it contends that the Appellant completed her journey from home to work when the Appellant entered the workplace so it could not be said that this is a journey claim. The Regulator further contends that the injury is not compensable as the injury occurred before 9.00am when the Appellant was rostered to commence work. The effect of the Regulator's position is that an employee who attends at their place of work in the window of time between when they complete their journey but before the commencement of work will not be afforded any protection under the WCR Act if they are injured before their commencement time.
  1. [77]
    For completeness, it is noted that the parties have not argued or sought to rely on the relevant principles to establish that this incident occurred in an 'interval' to justify a finding that the Appellant suffered an injury but not whilst relevantly engaged in actual work.
  1. [78]
    Accordingly, regard will be had to the relevant principles to be applied when considering the operation of s 32(1) of the WCR Act.

In the Course of the Employment

  1. [79]
    The Appellant's submissions firstly address that the injury was suffered in the course of the employment and that her employment was a significant contributing factor to the injury.
  1. [80]
    In Kavanagh v Commonwealth,[40] the Court considered the effect brought about by the legislative change which amended the previous requirement that the injury arose out of and in the course of employment to the requirement that the injury arose out of or in the course of employment.[41]
  1. [81]
    An understanding of the relevant facts in Kavanagh is of assistance when considering the reasons. The facts were relevantly set out by Dixon CJ as follows:[42]

It appears that Kavanagh, who was about sixty-three years of age, was employed in the work of packing stationery at postal premises in Little Bourke Street. Work began at eight o'clock in the morning. On Monday, 13th January 1958, he had worked overtime and on his return home he had had a late meal. Next morning he left home at the usual time apparently in good health. He arrived ten minutes before the commencement of work, and seemed well enough to those with whom he talked. After about half an hour's work he left the floor to go to the convenience. When he returned he said he felt ill and had diarrhoea. Suddenly he vomited. He was taken home and on the journey he seemed to collapse. A doctor was summoned who arranged for Kavanagh to go to hospital where he was admitted after a little delay. It was there found that he had ruptured his gullet. An operation was performed at once to repair the rupture, but although this was done satisfactorily the condition of the patient deteriorated and six days later he died.

  1. [82]
    Dixon CJ concluded that the rupture of Mr Kavanagh's gullet in these circumstances is to be considered an injury by accident.  However, it was observed that the real difficulty with the case lies in the question of whether the accident consisting of the rupture of the gullet arose in the course of employment.[43]
  1. [83]
    Relevantly, Dixon CJ held as follows:[44]

When the Commonwealth Employees' Compensation Act 1930 was enacted s. 9 (1) took the form of its English prototype and provided that if personal injury by accident arising out of and in the course of his employment is caused to an employee of the Commonwealth the Commonwealth shall . . . be liable to pay compensation . . . . An unimportant amendment was made by Act No. 8 of 1944, but by s. 4 of Act No. 61 of 1948 the provision was replaced. In the substituted provision the double condition expressed by the words "arising out of and in the course of the employment" was changed to the alternative conditions expressed by the words "arising out of or in the course of the employment". A similar change had, of course, been made in certain State Workers' Compensation Acts. Possibly if the history of the provision were unknown or the provision had been enacted for the first time in its present form as an original piece of legislation attempts might have been made to read the words "or in the course of the employment" as epexegetically or explanatory in some way. But it is impossible to disregard the course of legislation. Few, if any, expressions had received so much judicial consideration and in so many jurisdictions as had the words "personal injury by accident arising out of and in the course of the employment". Repeatedly the contrast had been made between the effect of the words "out of" and the effect of the words "in the course of". Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connexion between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition. I have seen nothing to suggest that within the expression "in the course of the employment" there had been discovered any element of causal relation with the employment and its incidents. To prescribe that element was considered to be the work of the words "arising out of". It was thus natural for this Court to say after the word "or" had been substituted for "and" in the Western Australian provision that the result of English authority was "to show that the words 'arising in the course of the employment' describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service".

…

But for myself I think that the words "arising in the course of the employment" do not connote or imply even so slender a causal connexion.

…

In my opinion the appeal should be allowed with costs and the cause remitted to the County Court at Melbourne to assess or give directions for the assessment of compensation.

  1. [84]
    Fullagar J similarly concluded that Mr Kavanagh was entitled to succeed, and in doing so considered the effect of the phrase "arising… in the course of employment" as follows:[45]

But what does emerge from a consideration of the cases is, I think, the significant fact that the effect of requiring a causal connexion between employment and injury is always attributed to the words 'out of' and not to the words 'in the course of'. (The words ... 'out of' do indeed import causation: the words 'in the course of' do not.) The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment. And it necessarily follows, I think, that the words 'arising in the course of his employment' ought not to be regarded as meaning anything more or less than 'arising while the worker is engaged in his employment'. For I can find no tenable half-way house between this view and the view that the words in question have the same meaning as the words 'arising out of his employment'.

  1. [85]
    After reviewing a number of authorities, in Kavanagh, Menzies J stated as follows:[46]

My review of these cases leads to the conclusion that if a worker is injured while doing something incidental to what he was employed to do, that is sufficient and no other association between the injury and his work is necessary; he is to be in the same position as if the injury arose while he was doing what he was employed to do. So far then from these cases indicating any causal element covered by the phrase 'in the course of', they seem to me to accept a temporal relationship as sufficient, and to extend the time from working time to the time of doing what is incidental to work. This clearly appears from what was said by Jordan C.J. in Davidson v. Mould: "The initial question is whether it was open to the Commission on the evidence to find that the injury arose in the course of employment, that is to say, whether it was sustained whilst the worker was doing the work which he was employed to do or something incidental to it. If, when he sustained the injury, he was engaged in doing something which it was his duty to do under his contract of employment, the case is clear. But it does not follow that because he was not then so engaged it was not sustained in the course of employment. It is sufficient if it is shown that he was at the time doing something incidental to his employment".

  1. [86]
    In Waugh v Blackwood,[47] Martin J referred to the majority decision in Comcare v PVYW who in turn considered Kavanagh as follows:[48]
  1. …In Kavanagh v The Commonwealth, Dixon CJ said that "no direct … causal connection … is proposed as an element necessary to satisfy the conception of an injury by accident arising in the course of the employment but only an association" with the employment.
  1. Dixon CJ expressed that association in two ways. In a positive sense it might be said that, had it not been for the employment, the injury would not have been sustained. Put negatively, and perhaps more usefully for present purposes, it requires that "the injury by accident must not be one which occurred independently of the employment and its incidents".
  1. [87]
    Against the Appellant, the Regulator argues that the Appellant's injury did not occur in the course of her employment for the following reasons:
  1. The Appellant's starting time was 9:00am.
  1. There was no necessity for the Appellant to be at work any earlier, particularly in December which is Kitchen Connection's quietest month.
  1. There was no express or implicit direction or instruction from Kitchen Connection whether orally or in writing that the Appellant was to attend work earlier than 9:00am.
  1. There was also no expectation from management at Kitchen Connection that showroom consultants would attend work earlier to be ready for work at 9:00am.
  1. Given that December was the quietest month for Kitchen Connection both in terms of sales volumes and number of attendees at the showroom (the evidence being that the number of customers attending dropped by approximately half) there was also no necessity for the Appellant to be at work early
  1. In order for her to be prepared to commence work at 9:00 am the activities that the Appellant had to undertake could be done in well under five minutes.
  1. It was the Appellant's personal choice to arrive approximately 15 to 20 minutes early.
  1. On 15 December 2021 the only work task undertaken by the Appellant was to attempt to turn on her computer.
  1. Thereafter the Appellant left the work premises to attend to a private/personal requirement which was not related in any way to her work and was not part of her work duties.
  1. At the time of doing this, the Appellant had not commenced work and was not being paid and it was effectively her time. She could have gone shopping, she could have gone and bought a coffee or something to eat, she was not subject to the direction and control of Kitchen Connection.
  1. In the words of the authorities summarised above, the Appellant was effectively on her own business and not that of Kitchen Connection when she sustained her injury.
  1. It was her choice to go to the bathroom at that time, it was also her choice as to which bathroom she chose to go to and the path that she travelled to get there.
  1. All of these decisions were completely independent of Kitchen Connection.
  1. [88]
    Accordingly, the starting point for the analysis of this matter is to consider whether the injury occurred in the course of the Appellant's employment.
  1. [89]
    One of the main points able to be derived from the Regulator's submissions stated above, particularly at [87](b)-(h) and (j), is that the Commission should find the injury did not occur in the course of the employment, because the injury occurred prior to the rostered commencement time of 9.00am. However, these submissions are disturbed by the factual finding that there was an expectation that the Appellant arrive at work before her commencement time to prepare for work. In that regard, it is the accepted evidence that there was an expectation that the Appellant and other employees attend work prior to 9.00am. The purpose of that expectation was to ensure the employees had taken all necessary steps to ensure that they were ready and able to perform their customer focused role from the commencement time of 9.00am.
  1. [90]
    Consistent with this expectation, Kitchen Connection provided the Appellant and other employees with a key in order for them to be permitted to access the workplace prior to 9.00am.
  1. [91]
    It has been held that a reasonable period of time should be permitted before the commencement of work to allow a worker to properly prepare themselves for the work in which they are engaged.[49]
  1. [92]
    In Mayne, a worker died of a ruptured aneurism after voluntarily assisting another worker to pull out a truck (at a mine site) laden with sand. On the day of his death, the worker was due to commence work at 7.30am, however, he arrived at the mine site earlier than that. He entered the office and received his docket to work at 7.20am and went down a tunnel where he ordinarily does not work in order to locate a tool to prepare to start work. It was down this tunnel where he came across a fellow worker who could not move the truck and he volunteered to assist in moving the truck.
  1. [93]
    Parker CJ considered whether the injury occurred in the course of employment as it occurred before the worker's rostered commencement time as follows:[50]

Then it has been argued before us that this injury having occurred before the time at which Mayne had to commence work – he had to commence work about 7.30, whereas this accident occurred about 20 minutes past 7 – it was not an accident which occurred in the course of his employment. From a perusal of the cases which have been quoted to us, I think that what is to be deduced from them with respect to the time of commencing work is this, that a workman's employment begins when, for the purposes of his work, he enters upon the premises on which his work was situated. Mayne had apparently got his ticket for the day. He had been to the office, or to some place where he got his ticket which gave him employment; it was an engagement for the day. He was on the premises where his work was to be performed, and he was looking for a tool for the purpose of performing that work at the time this accident occurred. In Benson v. Lancashire and Yorkshire Railway Co. (b), the Master of the Rolls said, "It seems to me, with regard to a person who is employed for a certain period, either of the day or night, that during the period that he is so employed he is entitled to the privileges given by the Act, but from the time when he leaves off work, say in the evening, until he arrives at the spot where his employment is to commence again next morning, he is in the same position as regards his employers as any other member of the public, and is not within the protection of the Act." Apparently, therefore, the Master of the Rolls was of the opinion that the workman was entitled to the protection of the Act from the moment that he arrived at the spot where his employment was to commence. Matthews, L.J., in the same case said, "I wish to say that I do not think that the protection given by the Act can be confined to the time during which a workman is actually engaged in manual labor, and that he would not be protected during the intervals of leisure which may occur in the course of his daily employment. A workman is not a machine, and must be treated as likely to act as workmen ordinarily would during such intervals; and regards any reasonable use which, while on the employer's premises, he may make of moments when he is not actually working, I must not be supposed to say that he would be thereby deprived of the protection of the Act. I think that before a workman can be deprived of that protection during such intervals there must be some clear deviation by him from his duty under his contract with his employer." The authorities I have quoted I think support the view I take, which is firstly that this was an accident, and that it occurred during the course of the man's employment…

  1. [94]
    Similarly, Burnside J expressed a view that a reasonable time must be allowed before commencing work to allow a worker to prepare for the workday as follows:[51]

I therefore think, in common parlance, that the cause of death was accident, and that it arose out of and in the course of his employment is, I think, quite clear ; and when the cases to which we have been referred are looked at, particularly the case of Steel v. Cammell, Laird & Co. (a), it will be seen that a reasonable time must be allowed before commencing the work, in order to allow a workman to prepare himself for the engagement in which he is engaged. No doubt it must only be a reasonable time. The evidence shews that the accident occurred between 7.20 and 7.30, and under these circumstances I agree with the learned Chief Justice that this man died from an accident arising out of and in the course of his employment, and the plaintiffs are therefore entitled to £400 in respect of it.

  1. [95]
    Whilst there was no process for the Appellant to receive a docket (such as there are on mine sites), the Appellant entered the premises of the workplace using the key provided by her employer which permitted her to be on those premises prior to the Showroom door being unlocked for customers and before her work commenced at 9.00am.
  1. [96]
    The evidence is that the Appellant entered the Showroom, turned on the computer, put her bag down, put on her badge which she was required to wear and placed her lunch in the kitchen. The Appellant decided she needed to use the bathroom and commenced the walk to Bathroom B. Each of the steps the Appellant undertook after entering the Showroom was to prepare her for her engagement. This included the steps of going to the bathroom. It was at this point, en route to Bathroom B, that the Appellant was injured. This occurred at approximately 8.45am.
  1. [97]
    In relying on the principles outlined in Mayne, a reasonable time must be allowed before commencing work to prepare for the engagement. What is reasonable will turn upon the relevant facts of the matter.
  1. [98]
    I consider that the Appellant arrived at a reasonable time before her commencement time in order to prepare herself for her work. In determining that it was reasonable, I have considered the expectation of the Appellant's manager, Ms Buono, as determined above. Consistent with this expectation, I have also had regard to the evidence that other showroom consultants and employees attended at the workplace between 10 to 15 minutes before the commencement of work to prepare for the day. The evidence is that those staff, like the Appellant, were provided keys permitting them to enter the workplace prior to 9.00am. Additionally, I have had regard to the steps the Appellant undertook upon her arrival at the workplace and also the steps she intended to take which included an intention to go to the bathroom which required her to walk a distance before her work commenced at 9.00am.
  1. [99]
    There is no evidence that the Appellant was engaged in a frolic of her own as contended by the Regulator at the time of the injury. Accordingly, the Appellant arrived at work to prepare for the work in which she was engaged to perform within a reasonable time prior to the commencement of that work.
  1. [100]
    It then falls to determine whether the activity the Appellant was engaged in occurred in the course of the Appellant's employment.
  1. [101]
    The relevant inquiry is whether the injury was sustained whilst the worker was doing the work which they were employed to do or something incidental to it.
  1. [102]
    Here, it must be determined whether the activity of going to the bathroom, which at this workplace requires walking to Bathroom A or Bathroom B, was incidental to the work the Appellant was employed to do.
  1. [103]
    It has long been held that allowances must be made for a worker to engage in the "ordinary habits of human nature".[52]
  1. [104]
    In Stewart, the Court observed:[53]

As Lord Loreburn L.C. said in Low's Case (3) :- "Everything, of course, must depend upon the nature of what he has to do, but allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act. A man may be within the course of his employment not merely while he is actually doing the work set before him, but also while he is where he would not be but for his employment, and is doing what a man so employed might do without impropriety."

  1. [105]
    In Weaver v Tredegar Iron & Coal Co Ltd,[54] Lord Aiken relevantly observed:[55]

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. 

  1. [106]
    The facts of this matter are that the Appellant was engaged in an activity, going to the bathroom, that was a "necessity of nature" and an activity that is clearly incidental to the employment.
  1. [107]
    Accordingly, I find that the injury occurred in the course of the Appellant's employment.
  1. [108]
    However, the Commission must also consider, for the purpose of s 32(1) of the WCR Act whether the employment was a significant contributing factor to the injury.

Significant Contributing Factor

  1. [109]
    The requirement in s 32(1) of the WCR Act stating that employment be a significant contributing factor to the injury introduces an important element of causality with the result that, in the absence of that factor, an injury caused incidentally to the employment will not be compensable.[56]
  1. [110]
    The requirement that employment be a significant contributing factor was also considered by Keane J in Newberry v Suncorp Metway Insurance Ltd,[57] as follows:
  1. [41]
    That having been said, however, 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. [111]
    It is the case, that in order for the employment to be a significant contributing factor to the injury, the employment must be important or of consequence so far as the injury is concerned and there must be some connection between the two things.[58]
  1. [112]
    Relevantly, the nature of the Appellant's employment was such that it led to the practical requirement that the Appellant was required to use Bathroom A or Bathroom B when she was at work.
  1. [113]
    Given that employees of Kitchen Connection were required to use Bathroom A or Bathroom B, I do not consider the Regulator's criticism of the Appellant's choice of bathroom to be relevant. However, if I am wrong with respect to this conclusion, it is further found that the reasons proffered by the Appellant as to why she chose to use Bathroom B are reasonable and logical in the circumstances of the matter for the reasons previously identified. Accordingly, it was appropriate, in the circumstances of the matter, for the Appellant to be en route to Bathroom B at the time of the injury.
  1. [114]
    Further, the Regulator argues that the hazard that caused the injury was unrelated to the Appellant's employment.
  1. [115]
    In Stewart, consideration was given to the causal connection between the accident and the employment if the employment brought a worker to a particular sport where the injury occurred. Whilst those reasons considered the matters in the context of whether the injury "arose out of" the employment they are of assistance when considering the "causality element" with respect to whether the employment was a significant contributing factor.
  1. [116]
    Duffy CJ, Evatt and McTiernan JJ relevantly observed:[59]

It seems to us that Simpson's Case is a strong authority in favour of the appellant. The accident was "unexplained," and yet, as Lord Tomlin pointed out, "where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment." This re-statement of the cases shows clearly that if Astill was "in the course of his employment" properly at a place near the stove, his accident also arose "out of" his employment if it arose because of a "risk particular thereto" attached to that place. What is really the same principle is stated by Russell L.J. in Lawrence v. George Matthews (1924) Ltd. as follows:—"Sufficient causal relation or causal connection between the accident and the employment is established if the man's employment brought him to the particular spot where the accident occurred, and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, then the accident 'arises out of' the employment, even though the risk which caused the accident was neither necessarily incident to the performance of the man's work, nor one to which he was abnormally subjected."

  1. [117]
    In this matter, the evidence has established that the Appellant, in the course of her employment, was properly in a place where she was exposed to a risk, being the puddle upon which she slipped, and was injured. In these circumstances, the Appellant's employment brought her to the particular spot where the injury occurred and the spot turned out to be a dangerous spot. It follows that the employment is of significant importance and consequence to the injury and that there is a clear connection between the Appellant's employment and the injury.    
  1. [118]
    In this case, the exigencies of employment derive from the fact that Kitchen Connection did not provide bathroom facilities within the Showroom. Consequently, when its staff were at work at the Showroom they were required to Bathroom A or Bathroom B. It was while en route to Bathroom B that the Appellant was injured due to a hazard at that spot. It is these circumstances that lead to a conclusion that the Appellant's employment is a significant contributing factor to the injury.
  1. [119]
    On the basis of the above conclusion, that the injury was one that occurred in the course of the employment and that the Appellant's employment was a significant contributing factor to the injury, the injury is an injury within s 32(1) of the WCR Act.
  1. [120]
    As the Appellant has been successful on the appeal with respect to its contention that the injury is one within the meaning of s 32(1) of the WCR Act, it is unnecessary to consider the Appellant's alternative contentions regarding the operation of ss 34(1)(a) and 34(1)(b) of the WCR Act.
  1. [121]
    In any event, on the factual and legal findings made by the Commission, the circumstances giving rise to ss 34(1)(a) and 34(1)(b) of the WCR Act do not arise.
  1. [122]
    For completeness, the Commission will briefly consider the final alternative argument put by the Appellant in respect to the operation of s 35 of the WCR Act.

Is the Injury one within the meaning of s 35 of the WCR Act?

  1. [123]
    The Appellant contends that, in the alternative, the Appellant was on a journey between work and home, thereby falling within the meaning of "injury" under section 35(1)(a). The Appellant's submissions in this regard stated:[60]
  1. The evidence establishes that the Appellant arrived at the showroom at about 8.45am. On the Respondent's case, the requirement for the Appellant to start work was not until 9.00am. The definition of "place of employment" in schedule 6 of the Act has a temporal condition on it, in that it requires the person to have been working at the time of injury for it to be the place of employment.
  1. As the Appellant was not yet officially "working" (within that contemplated by the definition of "place of work" in schedule 6) at the place of employment when she sustained her injury, she had not yet reached her "place of employment". The travel to the bathroom near the showroom is not a substantial disruption of or deviation from, the journey.
  1. Therefore, the Appellant was still on a journey to her "place of employment" when she suffered the injury and is deemed to be an injury arising out of or in the course of her employment under section 35(1)(a). If this is accepted, the Appellant need not show that her employment was a significant contributing factor to the injury (section 35(2).
  1. [124]
    In making this argument, the Appellant must effectively abandon her evidence and the evidence of Ms Buono that there was an expectation that she arrive prior to the commencement time and that on the day of the injury she did arrive prior to her commencement time, entered the workplace and commenced preparing for her work day.
  1. [125]
    The Respondent contends that s 35 of the WCR Act has no application to the circumstances of the Appellant's injury as:
  1. the Appellant's journey between her home and place of employment ended when the Appellant entered Kitchen Connection's showroom; and
  1. upon leaving the place of employment to walk to the public toilets, she was no longer on a journey between her home and her place of employment and had in fact embarked on a new journey.
  1. [126]
    On the basis of the factual findings made above, the Appellant concluded her journey from home to work when she entered the Showroom and started to take steps to prepare for her work.
  1. [127]
    In the circumstances, s 35 of the WCR Act does not apply.

Orders

  1. [128]
    I make the following orders:
  1. The Appeal is allowed.
  1. The decision of the Respondent of 3 June 2022 is set aside.
  1. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.
  1. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Footnotes

[1] Workers Compensation and Rehabilitation Act 2003 (Qld) s 11 ('WCR Act').

[2]  Paula Stockwell, 'Appellant's Written Submissions', Submission in Stockwell v Workers' Compensation Regulator, WC/2022/113, 3 April 2023,              [57] ('Appellant's Written Submissions filed 3 April 2023').

[3]   The contention referred to in [5](d) herein.

[4]   Appellant's Written Submissions filed 3 April 2023 (n 2) [58]–[64].

[5]   Ibid [65]–[71].

[6]   Appellant's Written Submissions filed 3 April 2023 (n 2) [72]–[75].

[7]   As amended during the course of the hearing by agreement between the parties. See Transcript of Proceedings, Stockwell v Workers' Compensation Regulator (Queensland Industrial Relations Commission, WC/2022/113, Hartigan DP, 9 March 2023) 7 ('Transcript of Hearing on 9 March 2023'). 

[8]   Paula Cherie Stockwell, 'Appellant's Statement of Admitted Facts', Exhibit 1 in Stockwell v Workers' Compensation Regulator, WC/2022/113, 9 March 2023, [2]–[14], [17]–[18], [25]–[26].

[9]  Transcript of Hearing on 9 March 2023 (n 7) 18 (P Stockwell). 

[10]   Ibid 25, 26 (P Stockwell). 

[11]   Transcript of Hearing on 9 March 2023 (n 7) 29 (P Stockwell).

[12]   Ibid 31 (P Stockwell).

[13]  Transcript of Hearing on 9 March 2023 (n 7) 51 (A Ball). 

[14]   Transcript of Hearing on 9 March 2023 (n 7) 83, 87, 96.

[15]  Ibid 67 (A Buono). 

[16]   Ibid 74 (A Buono).

[17]  Transcript of Hearing on 9 March 2023 (n 7) 67 (A Buono). 

[18]  Ibid 68 (A Buono). 

[19]   Ibid 73 (A Buono).

[20]  Ibid 74 (A Buono). 

[21]  Ibid 80 (L Hunter).

[22]  Transcript of Hearing on 9 March 2023 (n 7) 79 (L Hunter).

[23]   Ibid 80 (L Hunter).

[24]  Ibid 86 (L Hunter).

[25]  Ibid 85 (L Hunter).

[26]  Ibid 100–1 (R Foster).

[27]  Transcript of Hearing on 9 March 2023 (n 7) 101–2 (R Foster).

[28]   Paula Cherie Stockwell, 'Exhibit 4', Exhibit 4 in Stockwell v Workers' Compensation Regulator, WC/2022/113, 9 March 2023.

[29]   Ibid.

[30]   Transcript of Hearing on 9 March 2023 (n 7) 36 (P Stockwell).

[31]  Ibid 40 (P Stockwell).

[32]  Transcript of Hearing on 9 March 2023 (n 7) 35 (P Stockwell). 

[33]  Ibid 35, 37 (P Stockwell).

[34]  Ibid 38 (P Stockwell). 

[35] Mayne v South Kalgurli GM Ltd (1907) 9 WALR 152, 159 ('Mayne').

[36]  Ibid 160.

[37] Comcare v PVYW (2013) 250 CLR 246 ('Comcare v PVYW').

[38] Telstra Corporation Limited v Bowden (2012) 206 FCR 207.

[39] Qantas Airways Limited v Q-COMP & Blanch (2009) 191 QGIG 115; Da Ros v Qantas Airways Ltd [2010] NSWCA 89, [21]–[24].

[40]   (1960) 103 CLR 547 ('Kavanagh'); as applied in Glass v Workers' Compensation Regulator [2020] ICQ 1 ('Glass').

[41] Kavanagh (n 40) 555–6.

[42]   Ibid 553.

[43] Kavanagh (n 40) 554.

[44]   Ibid 555–6, 557.

[45] Kavanagh (n 40) 558–9.

[46]   Ibid 572 (citations omitted).

[47]   (2015) 251 IR 126.

[48]   (n 37) [53]–[54] (citations omitted).

[49] Mayne (n 35).

[50] Mayne (n 35) 159–60.

[51]   Ibid 161.

[52] Stewart v Metropolitan Water, Sewerage & Drainage Board (1932) 48 CLR 216, 222 ('Stewart').

[53]   Ibid.

[54]   [1940] AC 955.

[55]  Ibid 164.

[56] Glass (n 40) [45].

[57]   [2006] 1 Qd R 519, [41]–[42].

[58] Glass (n 40) [51].

[59] Stewart (n 52) 223–4 (emphasis in original) (citations omitted).

[60]   Appellant's Written Submissions filed 3 April 2023 (n 2) [73]–[75].

Close

Editorial Notes

  • Published Case Name:

    Stockwell v Workers' Compensation Regulator

  • Shortened Case Name:

    Stockwell v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 100

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    09 Apr 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Comcare v PVYW (2013) 250 CLR 246
2 citations
Jump To
Cite 1 - (2013) 250 CLR 246
Cite 2 - (2013) 250 CLR 246
Da Ros v Qantas Airways Ltd [2010] NSWCA 89
2 citations
Jump To
Cite 1 - [2010] NSWCA 89
Cite 2 - [2010] NSWCA 89
Glass v Workers' Compensation Regulator [2020] ICQ 1
2 citations
Jump To
Cite 1 - [2020] ICQ 1
Cite 2 - [2020] ICQ 1
Kavanagh v The Commonwealth (1960) 103 CLR 547
2 citations
Jump To
Cite 1 - (1960) 103 CLR 547
Cite 2 - (1960) 103 CLR 547
Mayne v South Kalgurli GM Ltd (1907) 9 WALR 152
2 citations
Jump To
Cite 1 - (1907) 9 WALR 152
Cite 2 - (1907) 9 WALR 152
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 519
Cite 2 - [2006] 1 Qd R 519
QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 115
Cite 2 - (2009) 191 QGIG 115
Stewart v Metropolitan Water, Sewerage & Drainage Board (1932) 48 CLR 216
2 citations
Jump To
Cite 1 - (1932) 48 CLR 216
Cite 2 - (1932) 48 CLR 216
Telstra Corporation Limited v Bowden (2012) 206 FCR 207
2 citations
Jump To
Cite 1 - (2012) 206 FCR 207
Cite 2 - (2012) 206 FCR 207
Waugh v Blackwood (2015) 251 IR 126
2 citations
Jump To
Cite 1 - (2015) 251 IR 126
Cite 2 - (2015) 251 IR 126
Weaver v Tredegar Iron & Coal Co Ltd [1940] AC 955
2 citations
Jump To
Cite 1 - [1940] AC 955
Cite 2 - [1940] AC 955

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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