Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324
• Hearing dates: 26 September 2012
• Decision date: 26 September 2012
• Before: Allsop P at [1], [49]; Basten JA at [35]; Hoeben JA at [48]

Decision

(1) Appeal allowed;

(2) Set aside the decision of the Workers Compensation Commission made on 1 June 2011;

(3) Remit the matter to the Workers Compensation Commission for consideration according to law;

(4) Respondent pay the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: WORKERS' COMPENSATION - entitlement to compensation - worker injured at party held on work premises - party held to farewell work colleague and to celebrate birthdays of persons having no connection to employer - employer provided no food, drink, entertainment or security for party - worker attended party to meet clients, make a good impression and join in with work team - whether sufficient connection between injury and employment
• Legislation Cited: Workers Compensation Act 1987 (NSW), ss 4, 9, 9A; Workers Compensation Legislation Amendment Act 2010 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353
• Cases Cited: Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473; Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281; Hook v Rolfe (1986) 7 NSWLR 40; Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740; Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115; Sapina v Coles Myer Ltd [2009] NSWCA 71; Smith v Australian Woollen Mills Ltd [1933] HCA 60; 50 CLR 504; Tarry v Warringah Shire Council [1974] WCR 1; Telstra Corporation Ltd v Bowden [2012] FCA 576; Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566
• Category: Principal judgment
• Parties: Pioneer Studios Pty Ltd (Appellant); Kathryn Hills (Respondent)
• Representation: L King SC (Appellant); B J Gross QC and S B Dixon (Respondent); Bartier Perry (Appellant); Carroll & O'Dea (Respondent)
• File Number(s): 2011/208280

Decision under appeal

• Citation: [2011] NSWWCCPD 30
• Date of Decision: 2011-06-01 00:00:00
• Before: Roche DP
• File Number(s): 6838-2010

Judgment

1 ALLSOP P: On or about 2.00 am on 14 March 2004, Ms Kathryn Hills fell over a balustrade at the premises of her employer, Pioneer Studios Pty Ltd ("Pioneer") and suffered serious head and brain injuries. She was attending a social function that had commenced the previous evening. The contest before the Workers Compensation Commission was whether her injuries fell within the meaning of the Workers Compensation Act 1987 (NSW), ("the Act"), ss 4, 9 and 9A.

2 On the evidence, the Senior Arbitrator answered these questions unfavourably to Ms Hills. On appeal by way of review regulated by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act"), s 352, in its form prior to the amendment effected by the Workers Compensation Legislation Amendment Act 2010 (NSW) (as to which see Sapina v Coles Myer Ltd [2009] NSWCA 71), a Deputy President revoked the determination of the Senior Arbitrator, concluding that the injuries arose out of Ms Hills' employment and that her employment was a substantial contributing factor to her injuries.

3 From this decision Pioneer appeals as a party aggrieved by the decision "in point of law": the WIM Act, s 353(1).

4 The decision of the Deputy President was not founded on any express conclusion that Ms Hills was at the time of the injury in the course of employment. Rather, the Deputy President concluded at [145] of his reasons:

"Having conducted a review on the merits, I have concluded that Ms Hills was encouraged or induced to attend a work function for work purposes, namely a farewell function, at her employer's premises on the evening of 13 March 2004 and that there is a direct and unbroken connection between her employment and her injury such that her injury arose out of her employment, and that her employment was a substantial contributing factor to the injury."

5 An uncontroversial background to the matter is found in [2], [3] and [5] of the Deputy President's reasons:

"[2] Pioneer rents studios and photographic equipment to a range of clients. Its main clients are photographers and companies in the fashion industry. As at 2006, it had about 20 employees. Ms Hills started work with Pioneer as the manager of the equipment rental department about two weeks before her accident. She had a background in photography, having completed a media arts degree at Waikato Polytechnic Institution at Hamilton in New Zealand. She was to take the position held by Jennifer Martel, who was planning to go overseas. At the time of the accident, she was 27.

[3] Pioneer's managing director, Richard Ludbrook, gave permission for Pioneer's premises to be used for the function and, at about 2.00 am on the morning of the fall, he directed Ms Martel to ask guests to leave. The function had been organised by Alistair Buchanan, a photographer with Pioneer, and his two flatmates, Peter Fleming and Jordan Cvetanovski, neither of whom worked with Pioneer. The party was to celebrate the three men's birthdays and to farewell Mr Buchanan, who was leaving Pioneer to start work as a freelance photographer.

...

[5] The party started on the evening of Saturday 13 March 2004. Sometime after 2.00 am on Sunday 14 March, Ms Hills was walking from level five to level four when she lost her balance and fell over the railing on level five onto the landing on level four. An ambulance took her to Royal Prince Alfred Hospital where she remained until 13 April 2004 when she was transferred to Royal Rehabilitation Centre, Ryde. She returned to New Zealand on 19 May 2004 where she underwent extensive rehabilitation and eventually returned to work. She returned to Australia in July 2007 and worked in various jobs before returning to New Zealand in December 2009. Since May 2010, she has worked at a photography studio in Wellington."

6 The controversy before the Deputy President focused upon the circumstances of the organisation of the party and Ms Hills' invitation to it, as summarised at [4] of the Deputy President's reasons:

"The exact circumstances in which Ms Hills was invited to the party are disputed. In essence, her case is that either Mr Ludbrook and/or Ms Martel, Pioneer's incumbent manager of the equipment rental department, invited her because clients would be present and it would be a good chance to meet them and get to know other members of staff. Mr Ludbrook denies having told Ms Hills that it was in her interests to go to the party and denies that Pioneer played any role in the organisation or promotion of the party. Ms Martel agrees that she urged Ms Hills to attend the function, but the exact circumstances in which she did so, and whether she said that photographers would be present, are contentious and are considered in detail below."

7 After summarising the evidence of each witness and analysing the Senior Arbitrator's reasons, the Deputy President made the following findings and reasoned as follows.

8 He accepted as reliable Ms Hills' evidence that both Mr Ludbrook and Ms Martel (whose position Ms Hills was taking over) told her that a work colleague, Mr Alistair Buchanan, was having a party to celebrate his leaving and that the employees and also clients were coming and that they encouraged her to go to the party. He also accepted that Ms Hills did not know until after her injuries that it was also to celebrate the birthdays of Mr Buchanan and two of his friends, Messrs Fleming and Cvetanovski, who had no connection with Pioneer.

9 He found that one of the purposes of the party was to farewell Mr Buchanan and that Ms Hills' understanding was that it was a "work function".

10 He found that clients (photographers) attended the party.

11 One of the factual controversies resolved in the above findings was whether Ms Martel or Mr Ludbrook told Ms Hills that there would be clients present and whether they did any more than "suggest" she go to meet other colleagues. The Deputy President resolved these factual controversies in Ms Hills' favour.

12 He found that the function had two main purposes: a birthday party for Mr Buchanan and his two friends and a farewell party for Mr Buchanan. It was not, he said, appropriate to ascertain the primary purpose of the party. In this regard, the Deputy President referred to Hook v Rolfe (1986) 7 NSWLR 40 in this Court. In that case, a solicitor on holidays had a car accident on a Monday. The solicitor had intended to see a client on the following day. In rejecting the employer's argument that the holiday was the dominant purpose of the driving on the Monday, Glass JA (with whom Hope JA agreed) concluded that the conclusion by the trial judge that the injury was in the course of and arising out of employment would not be interfered with. The Deputy President cited the following passages from Glass JA's judgment at 44-5:

"The existence of conduct inspired by multiple purposes is a common phenomenon. It raises the problem of classification in connection with a legal standard defined in terms of purpose. The solution normally adopted is to act upon the relevant purpose, to disregard others and not to inquire which of them is dominant or earlier: Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617 (withhold supply for the reason that); National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation [1970] HCA 51; (1970) 122 CLR 13 (land used for the purpose of producing assessable income). The same approach has been adopted in relation to whether conduct motivated by several purposes can fall within the course of employment (Humphrey Earl Ltd v Speechley (at 134). (emphasis added)

...

The fault in this argument is that it ignores the concept of plurality of causes which is embedded in tort law and has been specifically extended to workers' compensation law: Baker v Willoughby [1969] UKHL 8; [1970] AC 467 at 492; Morris v George [1977] 2 NSWLR 552 at 580. The finding by the trial judge that the Monday trip was actuated by an employment purpose as well as a holiday purpose justifies a conclusion that one of the causes of the applicant's presence on the road near Cassilis on Monday afternoon was the professional call to be made next day on his employer's client. (emphasis added)"

13 The Deputy President found that the "employment purpose" of the party (to farewell Mr Buchanan) actuated or motivated Ms Hills to attend for the reasons he set out at [111]-[115].

14 The Deputy President accepted that the organisation of the party by Mr Buchanan was not by or on behalf of Pioneer. Mr Ludbrook gave permission for Pioneer's premises to be used. That was, in the Deputy President's view, "a significant factor in assessing the work connection with the injury". Mr Ludbrook exercised some control over the party by directing Ms Martel to tell the guests to leave at 2.00 am. Pioneer did not retain the security guard, who was retained by Mr Buchanan and his two friends to police the door. No alcohol or other amenity was provided by Pioneer. The Deputy President accepted that those considerations supported the submission that this was not a work function. He concluded, however, that:

" ... the other evidence of a work connection that I have referred to above outweighs these matters."

15 The Deputy President accepted that staff had not been required to attend, but said at [125]:

"... but a worker can be encouraged and induced to engage in a work activity without being compelled or coerced into doing so. I do not regard the lack of coercion as a determinative factor. It was therefore not to the point that Ms Hills was not under the impression that she would lose her job if she did not attend. She felt it was important that she attend for work purposes."

16 The Deputy President accepted at [126] that the usual characteristics of a "company function" were not present:

"... guests brought their own alcohol; the company provided no food or entertainment; Ms Hills was not asked to look after any particular guests; and the company issued no invitations. Clearly, the function was not organised to entertain clients and promote Pioneer to the photographic or fashion industry."

17 Rather, the Deputy President said, at [126]:

"That is not the worker's case. Her case, which I accept, is that she was actuated to attend a work function because of work purposes, namely, to meet clients, make a good impression and join in with the team."

18 The references in [124] and [126] quoted above reflect findings by the Deputy President that the function was "a work function", that is, a function, one purpose of which was to farewell Mr Buchanan, to which clients and staff were invited, and that Ms Hills was actuated to attend it by encouragement of her superiors for work purposes, to meet clients and her new colleagues.

19 The Deputy President said that whether an injury arose out of employment involves a causal relationship, citing (through approving the Senior Arbitrator's legal analysis) Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 at 570-571 and Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503. In applying this test, and in disagreeing with the Senior Arbitrator as to its application, the Deputy President said at [136]:

"... I have concluded that Ms Hills was encouraged and induced to attend the function and that she was 'actuated' to attend by work purposes. Pioneer provided substantial support for the function by allowing its premises to be used and Mr Ludbrook exercised control over the function by telling Ms Martel to ask people to leave at about 2.00 am. In light of these findings, the ultimate finding on causation cannot stand."

20 In distinguishing Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634, a case where the employer gave permission for a social club to operate and to organise social functions for employees, at one of which (a cruise) an employee fell overboard and drowned, the Deputy President said at [139]:

"JP Morgan had not induced or encouraged employees to attend the harbour cruise and had not permitted its premises to be used for the function. The cruise was neither a farewell function for an employee nor a function that clients attended. The worker had not been encouraged to attend by a manager. It was merely a social gathering by staff. It had none of the work connections of the kind present in the matter now before me."

21 The Deputy President's conclusions as to the phrase "arising out of employment" were set out at [142]:

"I have concluded that there was a direct and unbroken connection between the worker's employment and her injury such that, as a matter of commonsense, her injury arose out of it. For the reasons already stated, I accept that Ms Hills attended her employer's premises on the evening of 13 March 2004 at the encouragement of Ms Martel and Mr Ludbrook to attend a function that had two main purposes. One of those purposes was a work purpose, namely, farewelling a longstanding employee, Mr Buchanan. However, that was not the only work connection. The encouragement to attend came to Ms Hills in her position as the new person hired to replace Ms Martel as the equipment rental manager. In that position, she had to deal with photographers and, I infer, other members of staff. Because of her position at Pioneer as the new equipment rental manager, she was encouraged to attend and, because of that encouragement, she did attend. Her attendance brought her into contact with her work premises, where she received her injury when she fell over the balustrade while attempting to descend the stairs at those premises."

22 The Deputy President concluded that Ms Hills' employment was a substantial factor for the purposes of s 9A of the Act, recognising that the connection must be "real and of substance": Badawi. He reasoned as follows at [143]-[144]:

"[143] ... I make the following observations:

(a) time and place of injury: the accident occurred outside normal work hours but, given that it occurred at a social function, that is not determinative. The location (the employer's premises) suggests a strong employment connection with the injury;

(b) the nature of the work performed and the particular tasks of that work: the work performed by Ms Hills in Pioneer's equipment rental section necessarily put her in regular contact with photographers. In that sense, it was important for her to know them and be able to mix with them;

(c) the duration of employment: duration of employment is rarely a factor in determining whether s 9A is satisfied. However, in this case, the fact that Ms Hills had only been with Pioneer for a few weeks before the accident is important. Because of her newness in the company, she felt it important to attend the function to meet clients, 'make a good impression' and to 'join in with the team'. This adds weight to the causal connection between the employment and the injury;

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment: while it is possible that Ms Hills may have suffered a similar injury at the same stage of her life if she had not attended the work function, it is not possible to say that, without the particular employment circumstances in this matter, such an injury was probable in a fit, healthy, adult female, aged in her late twenties;

(e) the worker's state of health before the injury and the existence of any hereditary risks: this is not a relevant factor in this matter, and

(f) the worker's lifestyle and his or her activities outside the workplace: there is no evidence that the worker's lifestyle exposed her to the kind of risk to which she was exposed by her employment on the night of the function.

[144] Applying the terms of s 9A(2), I am satisfied that the connection between the employment and the worker's injury was real and of substance."

The grounds of appeal

23 The notice of appeal identifies three grounds, as follows:

"1.There is no evidence supporting the following critical findings:

(a)That the appellant encouraged or induced the respondent to attend the party on Saturday 13th March 2004; or

(b)That the respondent's injury arose out of the course of her employment with the appellant; or

(c)That the respondent's employment with the appellant was a material contributing factor to her injury.

2.The learned Deputy President misdirected himself by failing to properly formulate the extended course of employment permitted by Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473.

3.The learned Deputy President misdirected himself in considering whether s 9A Workers' Compensation Act 1987 applied by failing to place due emphasis upon the concept of substantial contributing factor." (emphasis in original)

The arguments of the parties

24 The appellant maintained the evidential challenge to the question of encouragement and the question of clients. There is a significant argument that Ms Hills' evidence was reconstruction and that there was to some significant degree an unreliable foundation for these conclusions and, to a degree, a misdirection by the Deputy President in relation to how the Senior Arbitrator had dealt with Ms Hills' evidence. Also, the evidence as to meeting clients was weak at best. However, because of the views I express below, it is unnecessary to conclude whether there was a misdirection and legal error in the fact-finding process.

Disposition

25 In Badawi, the Court was concerned with the correctness of the expression of views of Mason P (Meagher and Beazley JJA agreeing) in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740. In one respect, the majority in Badawi (Allsop P, Beazley JA and McColl JA) was of the view that Mercer was wrong: the relationship between "arise out of" and "a substantial contributing factor", and Mason P's view that the former was more stringent than the latter (see generally Badawi at 516-520 [49]-[71]). In other respects, Mercer read with Badawi remains binding authority. In particular, the following propositions are relevant.

26 First, the phrase "the employment" in s 9A(1) bears the same meaning as "employment" in the phrase "arising out of or in the course of employment" in s 4: Badawi at 516 [48(7)]; and Mercer at 745 [13].

27 Secondly, the meaning of "employment" was discussed in Badawi at 518-519 [61]-[67]. In that discussion at 519 [67], what Mason P said in Mercer at 745 [13] was approved:

"It is common ground between the parties and well established by earlier authority that, when s 9A(1) speaks of 'the employment concerned' being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment: see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632-3, 641. In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to the 'injury' as defined in s 4. See also Stanton-Cook [v TAFE Commission (NSW) [1999] NSWCC 5; 17 NSWCCR 632]."

28 The discussion of "arising out of ... employment" in Badawi at 520-522 [72]-[79] did not qualify that. Indeed, the discussion of the judgment of Starke J in Smith v Australian Woollen Mills Ltd [1933] HCA 60; 50 CLR 504 reinforces it: see Badawi at 521-522 [71]-[78]; and see also Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at 125 [22]-[25].

29 In circumstances where it is not expressly concluded that the injury arose in the course of employment and thus where, on this hypothesis, the injured worker was not at work, it is not apparent how the Deputy President could draw any conclusion about the injury arising out of employment or employment being a substantial contributing factor without considering the kinds of matters to which Mason P referred in Mercer at 745 [13]. This is not to confine "arising out of" to what is required of an employee but rather what she in fact does in the employment. This would require focus upon what was the employment, not what Ms Hills thought was the employment.

30 On this basis, the learned Deputy President has failed to direct himself according to law.

31 Many of the considerations of the function being a "work function" may go to support an argument that the injury occurred in the course of employment in the extended sense discussed in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473. Though, it should be said, some of the passages in Hatzimanolis (see, for example, at 482) may tend to the conclusion that Ms Hills' injuries did not occur in the course of her employment. That, however, was not how the matter was in terms approached by the Deputy President expressly.

32 On the other hand, if implicit in some of the findings (such as the reference to "by her employment" in [143(f)] that is quoted above) and in the whole approach of the Deputy President is a conclusion that at the time of the injury Ms Hills was in the course of employment, that conclusion has been reached without reference to the principles in Hatzimanolis. Further, that conclusion has been reached significantly by reference to Ms Hills' understanding of what happened, rather than by reference to the facts of what the employer actually did on and in respect of the evening in question by reference to the employment relationship.

33 The matter should be remitted to the Workers Compensation Commission to be dealt with according to law.

34 The orders that I would make are:

(1) Appeal allowed;

(2) Set aside the decision of the Workers Compensation Commission made on 1 June 2011;

(3) Remit the matter to the Workers Compensation Commission for consideration according to law;

(4) Respondent pay the appellant's costs of the appeal.

35 BASTEN JA: I agree with the orders proposed by the President and with his reasons, to which I add the following.

36 In circumstances where the appeal to this Court is limited to points of law, it should be accepted that the Commission's determination as to whether there is a causal connection demonstrated between an injury and employment will usually be unreviewable. However, this Court may intervene if it can be demonstrated that the Commission applied an erroneous legal principle, that there was no material before the Commission to support the findings of fact, or that, on the findings made, and upon the assumption that the correct legal principle was applied, only one conclusion was reasonably open, not being the conclusion reached by the Commission.

37 The core element of a worker's course of employment will be attendance at a workplace or carrying out work functions, during usual business hours. The nature of the core will vary depending on the nature of the work. Over the years, the boundaries have tended to erode. Thus it is now well accepted that social events (such as the office Christmas party) and recreational activities (such as trips on days off work for employees required to remain at remote locations) can well form part of the course of employment. Such events and activities tend to be marked by the employer's commitment of time and resources to organising the events and encouraging staff to attend. The fact that clear boundaries have been eroded does not mean that there are no boundaries; rather, the further from the core one moves the closer scrutiny of the circumstances involved.

38 In Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, the High Court considered an application for compensation by a soldier who was injured when he fell inside his barracks after returning inebriated from the Sergeant's Mess. The entitlement to compensation was satisfied if the injury "arose out of" his defence service, the last concept being the equivalent of employment. The Court was satisfied that "whether an event arises in the course of an activity, or as here, out of 'an activity', depends upon such circumstances as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties": at [23] (McHugh, Gummow, Callinan and Heydon JJ). On the facts of the case, the plurality held at [24]:

"There is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeant's Mess and the consumption in some quantity, even perhaps to be point of intoxication short of physical incapacity, of alcoholic drinks."

39 Thus, where there was no necessary criterion to be satisfied beyond the causal connection, the case was assessed by reference to a 'requirement' (of an informal kind) and an 'expectation' to attend a social function. No lesser connection should be accepted where the employment must be a "substantial contributing factor": Workers Compensation Act 1987 (NSW), s 9A. Counsel for the respondent submitted that the language in Roncevich was explicable by the military context in which it arose, but in fact it was taken from the judgment of Dixon J in Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281, which had nothing to do with a military setting.

40 As explained by Murphy J in Telstra Corporation Ltd v Bowden [2012] FCA 576 at [91] the High Court, in Hatzimanolis v ANI Corporations Ltd [1992] HCA 21; 173 CLR 473, provided an expansive view of the concept of "employment": however, that proposition should be understood by reference to the circumstances of the case. In Hatzimanolis the Court was dealing with an injury arising during an interval between periods of work; it rejected authority that the activity giving rise to the injury must have been undertaken "in order to carry out [the worker's] duties": at 482.

41 Hatzimanolis was not referred to by the Deputy President, perhaps because it is understood to deal with the second limb of the definition of injury, namely an injury "in the course of" employment. As counsel noted, in Tarry v Warringah Shire Council [1974] WCR 1 at 8, Samuels JA stated that, "it cannot be right to determine matters which arise under the first leg of the definition by debating questions of the scope of employment". In the context, the reference to "the scope of employment" was a reference to the second limb, namely "the course of employment". However, Samuels JA continued:

"The question which we have to determine is to be answered by inquiring whether there was a causal connection between the employment and the injury."

42 It follows that whatever may have been meant in this context by the scope of the employment, there is an essential requirement to identify the employment in order to determine the relationship between the injury and the employment.

43 As explained by Allsop P, the Deputy President did not address the evidence in these terms. Although the Deputy President referred to the party being a "work function", because one of its purposes was to farewell a departing employee, and because it provided an occasion for the respondent to mix with other staff and possibly with clients, that does not necessarily result in the injury arising in the course of the worker's employment. While, it could not be said that such a finding was not open, the question is whether the correct criterion was addressed.

44 If the respondent had been encouraged to go to Friday night drinks at a local pub where staff and clients regularly mixed casually, her attendance on such an occasion would probably not have been in the course of her employment. The fact that the party was held on work premises, as a result of the circumstances explained in the reasons of the Deputy President, would be relevant, but by no means conclusive, in favour of the whole evening becoming part of the "course of employment", if not for all staff who attended, at least for the respondent. How much weight that circumstance should be accorded is, no doubt, a matter for the Commission.

45 In finding that her attendance was in the course of her employment, if that were the finding to be inferred, the Deputy President focussed squarely on the worker's subjective "impression" and that she "felt" she should attend for "work purposes" - at [125]; her being "actuated to attend" - at [126] and [136], and by reference to her response to encouragement, at [142]. None of these findings is sufficient to engage the conclusion that her attendance was in the course of her employment. Her motives and beliefs may provide some evidential support for a conclusion that she was in fact attending in the course of her employment, but they do not form the relevant test. The course of employment is determined by the employer. The view of Mr Ludbrook would be more significant than that of a new probationary member of staff. However, even his views would not be decisive: the characterisation of the occasion will depend upon an objective assessment of the conduct of persons in authority with the employer, where such authority extends to determining the work hours and conditions of employment of staff. Although there was no express finding as to the relevant persons, it may be inferred that Mr Ludbrook was the primary person in authority; whether Ms Martell had such authority is at best doubtful on the evidence.

46 Accordingly, there can be no implicit finding that the worker's attendance was in the course of her employment for the necessary assessment of the causal connection because the issues critical to such a finding were not addressed. It was not necessary that the temporal element be satisfied; however, the nature of the link with her employment, objectively determined, was critical.

47 In Roncevich the High Court held that the Tribunal had failed to pose and answer the correct question, and thereby erred in law: at [28]. (In this case, it is necessary for the appellant to identify a decision of the Deputy President in point of law, which was erroneously determined, but nothing was seen to turn on this aspect of s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).) The judgment concluded that, whilst an affirmative answer was available on the whole of the evidence in Roncevich, it was not appropriate for the courts to determine the ultimate question of the appellant's entitlement, that question being remitted to the Tribunal. The same result is required in this case.

48 HOEBEN JA: I agree with the President and with the additional remarks of Basten JA.

49 ALLSOP P: I also agree with the additional remarks of Basten JA. The orders of the Court are as I have proposed.

Decision last updated: 08 October 2012