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Injury, during interval

Interval or interlude encouraged by employer...

"Hatzimanolis and the subsequent decisions of the Court of Appeal to which I have referred [noted below] establish that if the injury occurs at the particular place that the employer has authorised, encouraged or permitted the employee to spend his time, in determining whether the injury is compensable or non-compensable lies not so much in the employer's attitude to the way the interval between the period of actual work was spent, but in the characterisation of the period or periods of work.

"So in the present case, absent gross misconduct, Mr Allen's injury having occurred at a particular place (Melbourne) and he having been encouraged or the permitted to be at that particular place by his employer, the injury is an injury in the course of employment, whether the employer sanctioned the actual activity that caused injury or not" [39]: Mr Harrington, in Allen v Hudson Global (Aust) PL [2006] NSWWCCPD 360.

DecisionsInverell Shire Council v Lewis (1992) 8 NSW CCR 562; McCurry v Lamb (1992) 8 NSWCCR 556.

Mr Harrington [further from Allen, at 38]: "McCurry v Lamb (1992) 8 NSWCCR 556 was a case decided on the same day as Lewis. The worker in that case was a shearer, who was shot whilst sleeping in the jillaroos quarters. The worker's sleeping quarters were the shearer's quarters. However; on the night that he was shot by a deranged fellow shearer he, having consumed beer, went with a female rouseabout with her before falling asleep in her room. It was whilst he was asleep that he was shot.

Relevantly Handley JA said the following in respect of the facts of that case [page 559]:

"This appeal and the appeal in Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 were argued the same day before this Court. In my opinion, for the reasons given in Inverell Shire Council v Lewis (also delivered today), the worker sustained his injuries 'at a particular place', namely the camp, where the employer had induced or encouraged him to stay, and while he was doing something that was reasonably incidental to his temporary residence there, namely sleeping.

"No question of gross misconduct arises and the fact that the worker's injuries were caused by the deliberate and criminal conduct of a fellow employee does not affect his right to compensation.

"Accordingly the worker received his injuries in the course of his employment. This result may seem to some anomalous or even bizarre. The worker received his catastrophic injuries as the result of the actions of a deranged fellow shearer when and because he was in bed with a fellow employee in the rouseabouts' quarters.

"Another young man on or in the next bed, who was not an employee, was killed. Had that young man sustained similar injuries and lived he would only have been entitled to the invalid pension. The risk of injury that materialised to the worker occurred after working hours and because of what he and others did in their own time. The only involvement of the employer was that the female rouseabouts and Websdale were also employees, the employer knew of the worker's sexual relationship with one of the rouseabouts and the shooting occurred in the camp."

Mr Harrington [further from Allen, at 29]: "In order to review the Arbitrator's determinations under the Hatzimanolis principles it is necessary to consider the High Court decision in Hatzimanolis and various decisions of the Court of Appeal thereafter. The Court of Appeal in Inverell Shire Council v Lewis (1992) 8 NSW CCR 562 was called upon, very shortly after the decision of Hatzimanolis, to consider the Hatzimanolis principles. Handley JA, with respect, provided a useful summary of the decision and its historical significance.

His Honour said [at page 565]: "The liability of an employer for injury sustained by a worker 'in the course of' his or her employment depends on the existence of a temporal relationship between the employment and the injury. See Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 556-557, 559, 572, and 575; and Bill Williams PL v Williams (1972) 122 CLR 146 at 153, 154-5, 158. There is no requirement in such a case that the employment should have any causal connection with the injury.

"In a series of decisions culminating in Hatzimanolis v ANI the High Court has expounded and developed the test originally enunciated by Dixon J in Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29 that in order to arise in the course of employment the injury 'must happen while the employee is doing something which is part of or is incidental to his service'.

"In Hatzimanolis, Mason CJ, Deane, Dawson and McHugh JJ in a joint judgment reviewed the earlier High Court decisions and said at 482:

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

"The new principle was formulated at 483 as follows:

'... there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work ... where ... the whole period of the undertaking constitutes an overall period or episode of work. Where for example ... an employee is required to go to a remote place and live in accommodation provided by his or her employer ... until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work.

'An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location' ...

His Honour continued [at page 565]:

"There was no dispute that the worker's attendance at the training course was part of his employment for relevant purposes. His injuries were sustained during an interval between periods of training while he was in the caravan park where he was being temporarily housed by the employer.

"The joint judgment in Hatzimanolis includes a further statement of principle at 484:

'... An interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.'


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