Recess Claims by TurksLegal

Recess Claims A PAPER BY MICHELLE RIORDAN MARCH 2009

Recess Claims

Summary A discussion of the principles that apply to claims made under s 11 WCA.

Who Does This Impact? Workers Compensation Claims and Case Managers, Self Insurers, Risk Managers and Employers loyers of Workers in NSW.

What Action Should Be Taken? Consideration of issues arising under s 11 WCA with a view to properly classiﬁying a claim as a ‘Recess Claim’.

Contents:

TURKSLEGAL

When is a Claim a Recess Claim?

General Principles

What is an Ordinary Recess?

What is an Authorised Absence?

Personal Injury

‘... Does not During that Absence Voluntarily Subject Himself or Herself to any Abnormal Risk of Injury’

Practical Considerations

Recommendation

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Recess Claims by Michelle Riordan

When is a Claim a Recess Claim? Section 11 of the Workers Compensation Act 1987 (WCA) provides: If a worker on any day on which the worker has attended the worker’s place of employment pursuant to the worker’s contract of service or training contract: (a)

is temporarily absent from that place on that day during any ordinary recess or authorised absence,

(b)

does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and

(c)

receives a personal injury during that absence,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

General Principles For Section 11 WCA to apply to a personal injury, the worker must have attended their place of employment on the day of the injury. This means that the worker must have been continually in attendance at the place of work until the recognised time for ceasing work and it is not enough that a worker has merely presented for work. See: Campbell v Blackburn1

What is an Ordinary Recess? The phrase suggests a relatively brief interruption in an otherwise continuous period of work, such as a break associated with rest, refreshment or relaxation or a break that is incidental to the period of work. During an ‘ordinary recess’ a worker may also be on a daily or other periodic journey (to which Section 10 WCA applies). For example, a worker who usually goes home for a meal during a meal break will be on a journey within the meaning of Section 11 WCA as long as they are travelling to or from their home, home while the whole of the recess will be within Section 11 including the time they spend at home. See: Havard v Illawarra Meat Co Pty Limited2 However, ‘ordinary recess’ does not include ‘split shifts’, in which a worker is employed to work during 2 distinct periods in one day with a substantial interval of time between the 2 work periods. See: Landers v Dawson3 In the matter of Knight v State Transit Authority4, the Compensation Court held that a 4 hour gap between 2 periods of work did not constitute a ‘recess’. Accordingly, the worker, who had suffered an injury while playing a game of tennis during his 2 periods of work, was not entitled to recover compensation for his injury. Further, in Tooth & Co Ltd v Injac5 the New South Wales Court of Appeal held that a worker who worked as a chef from 9am to 3pm and from 5pm to 9pm, with a 2 hour break between shifts, was not on an ‘ordinary recess’ when injured during the break between shifts. Mahoney J held that ‘recess’ was not an appropriate word to describe the period of time between the shifts of work, but ordinarily denotes a break in the actual execution of work during a period of time when the worker is in the course of their employment.

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A recess may still be an ‘ordinary recess’ even if it is taken at a time different from the usual time in order to meet the worker’s convenience. See: Silk v Camberg Carpets Pty Limited6 and Beere v Royal Alexandra Hospital for Children7 In fact, the time at which the ordinary recess is taken, or its duration, may vary from day to day. See: Thompson v Lewisham Hospital8 In Worrell v Longworth9, Judge Burke held that an ‘ordinary recess’ can be described in a broad sense as ‘one of the normal breaks occurring in the period of work. The tea break and the lunch break are the most obvious.’ Further, an ‘ordinary recess’ can occur even when a worker is on call 24 hours per day. Although in that case the worker would effectively be employed to work for 24 hours per day. See: Leyi Lift (PNG) Ltd v Etherington10. In fact, the length of the period of employment is irrelevant in deciding whether an ‘ordinary recess’ has occurred. The issue is whether the break occurred during a period of employment rather than when the worker is off duty. It is important to note that not every absence from the place of employment with the permissions of the employer is an ordinary recess. See: Morton v Beckett11 For example, in Kmiec v Commissioner for Railways12, the Workers Compensation Commission (which then pre-dated the Compensation Court of NSW) determined that a stop work meeting was not an ‘ordinary recess’, at least in the absence of evidence that such meetings were frequently held with the employer’s acquiescence. An ‘ordinary recess’ is one that is recognised by some established practice in the workplace. See: Smithard v Speares Brick & Pipe Works Pty Limited13 Accordingly, it can be said that the ‘ordinary recess’ has been taken with the express or implied permission of the employer. See: Thompson v Lewisham Hospital (supra)

What is an Authorised Absence? In Worrell v Longworth (supra), Judge Burke held: ‘An authorised absence is an abnormal break [in work] which in the circumstances has been permitted by the employer.’ However, His Honour stated that not every permitted absence is an ‘authorised absence’ for the purposes of Section 11(a) WCA and that an ‘authorised absence’ has much the same characteristics as an ordinary recess – particularly as to its brief duration. For example, the fact that an employer gives a worker permission to take annual leave does not make that absence an ‘authorised absence’ for the purposes of Section 11(a) WCA. The main distinction between an ‘authorised absence’ and an ‘ordinary recess’ is that while the latter would be routine, an ‘authorised absence’ would be a variation from the normal.

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Commissioner Wright approved and applied that reasoning in the matter of Stefanovic v Resource Illawarra Pty Limited14. In that matter, the worker was involved in a motor vehicle accident while on a visit to see his doctor. The visit to the doctor’s surgery had been approved by his Supervisor and the worker left work, but he intended to return to work after the consultation. Commissioner Wright considered an ‘authorised absence’ as being ‘not a normal recess but an unusual absence of a temporary nature … for which the employer’s permission has been forthcoming.’

Personal Injury Section 11 WCA does not adopt the deﬁnition of injury in Section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (WIMA). This means that ‘disease’ and ‘aggravation etc of a disease’ are not included in the deﬁnition of ‘personal injury’ in Section 11 WCA. Accordingly, a worker who either contracts a disease or aggravates etc a disease during any ordinary recess or authorised absence from the workplace will not be entitled to recover compensation under Section 11 WCA.

‘... Does not During that Absence Voluntarily Subject Himself or Herself to any Abnormal Risk of Injury’ This condition (imposed by Section 11(b) WCA) is quite general in its application and it is not merely directed at the conduct out of which the injury has arisen. It closely resembles that imposed in Section 10 WCA (journey claims), namely that the risk of injury ‘is not materially increased’, which applies to an interruption of a journey between the place of abode and the place of employment. The onus is on the injured worker to prove that the conditions of Section 11(b) have been satisfied. See: Taylor v Stapley15 In the matter of Paraslitti v Diamakos16, Judge Geraghty held that the worker bore the onus of proving that he or she had not subjected himself or herself to an abnormal risk. This is a question to be determined in accordance with the circumstances of the case. His Honour held that the worker had subjected himself or herself to an abnormal risk of injury when he or she attempted to cross a busy 6-lane highway during his or her lunch break. Further, in the matter of Gallard v State Rail Authority17, Judge O’Meally stated that a worker must have knowledge of the risk of injury in order to voluntarily submit to an abnormal risk of injury and a determination to proceed ‘in disregard of its consequences’. His Honour decided that a mere ‘error of judgment’ was not sufficient. The meaning of Section 11 was recently considered by the Workers Compensation Commission in the matter of New South Wales Police Force v Cox18 (‘Cox’). In that matter, the worker was a Police Officer. He had been away from work on the 2 days preceding his injury because of a viral infection that caused a sore throat, headaches and a repeated dry cough. On 13 June 2004, he was rostered as the ‘on call officer’ for his Unit. He left home at about 6am in the ‘on call Police vehicle’ and intended to drive to Albury Police Station. He alleged that while he was driving to the Station, he turned his head and reached for the Police radio and that, as he did so, he coughed and suffered severe pain in his head and weakness in the left side of his body. There was conflicting evidence as to the nature of the injury and the exact manner in which it was sustained.

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For the purposes of this paper, it is not necessary to discuss that conﬂicting evidence. Sufﬁce to say that Deputy President Roche ultimately determined that the injury occurred at a time when the worker was in the course of his employment and that he was driving the Police vehicle in the course of that employment. However, the Deputy President felt that there was a high probability that the injury would have happened anyway at that same stage of the worker’s life if he had not been at work or employed by the Appellant. He held that this conclusion was reinforced by the fact that the worker had suffered identical symptoms when he coughed at home and that his GP diagnosed his headache as a ‘benign cough headache’. In any event, at the time of the injury he was suffering from a viral infection that caused him to cough and his symptoms resulted from that cough. Neither the viral condition nor the cough had any connection with the worker’s employment and there were no relevant lifestyle factors to be considered. Accordingly, Deputy President Roche held that the worker’s employment did not play any role in his injury and he determined that the worker’s employment was not a substantial contributing factor to the injury. Deputy President Roche also stated that at the oral hearing of the Appeal, the worker’s Counsel submitted that the worker was entitled to succeed because his injuries were sustained while he was on a journey to which Section 10 WCA applied. He argued that the worker’s rights under Section 10 are concurrent with his rights under Section 4 WIMA. In relation to the ‘journey claim’ argument, the Appellant submitted that once it is accepted that the worker was in the course of his employment, there is no scope for Section 10 to apply and that none of the authorities cited by the worker support that position. Alternatively, it submitted that if the worker is entitled to rely upon Section 10, it relies upon Section 10 (1D) and argues that the worker’s condition resulted from his medical or other condition (his viral condition and/or cough) and that the journey did not cause of contribute to the injury. Deputy President Roche did not accept that the worker was on a journey for the purposes of Section 10 WCA when the incident occurred. However, he discussed the authorities relied upon by the worker, as follows: In Havard (Supra), the worker attended his place of employment pursuant to his contract of service and then, during his lunch break, which was an ordinary recess under the Workers Compensation Act 1926 (the 1926 Act), he returned to his home where he had lunch. During his absence from work he sustained an injury. On appeal, Roper CJ in Eq (Ferguson and Manning JJ concurring) rejected an argument that the journey provisions were intended to be comprehensive and excluded any possible recovery (of ) compensation under the recess provisions.

As in Havard Havard, the issue in Thompson (Supra) concerned the recess provisions of the 1926 Act. The Court of Appeal held that a worker who leaves the workplace during a lunch break or other recognised interval is not necessarily outside the course of his or her employment. An ‘ordinary recess’ did not cease to be so because it could be said also that the employee was within the course of employment at the same time. Glass JA (Hope JA agreeing) observed (at 118): There is nothing in the [1926] Act which requires the various kinds of entitlement to compensation to be placed in watertight and mutually exclusive compartments and forbids any construction which provides for a common area between their respective spheres of operation.

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After referring to Havard, Havard, His Honour added: It follows that a period of rest which would otherwise fall within the statutory deﬁnition of ordinary recess does not fail to do so because the employee during its duration can be said also to be in the course of his employment. Indeed it is an everyday experience of which one may take judicial notice that employment breaks for morning and afternoon tea and even lunch are sometimes allowed upon the understanding that if an emergency arises the recess will be interrupted.

In Kyriakidas19, Langsworth J held that a worker who received an injury travelling from his place of work to his home during a meal break could claim compensation on the basis that the injury was received, either on a periodic journey or during an ordinary recess. The two provisions were not mutually exclusive. Deputy President Roche concluded that these authorities did not apply to the claim before him as it having been conceded that the worker was in the course of his employment when the injury occurred his ‘place of employment’ was the Police vehicle. As he had arrived at that place of employment, he could no longer be on a journey to which Section 10 WCA applied. Accordingly, he set aside the Arbitrator’s decision and entered an Award for the Respondent employer.

Practical Considerations Each claim under Section 11 WCA must be assessed on its own particular facts and circumstances, based on these general principles, with the understanding that the circumstances of each claim will vary. For example, a worker may make a claim for compensation as a result of an injury that he or she suffered while participating in sporting or general fitness activities during an ordinary recess, in circumstances where the activity has not been specifically approved or sponsored by the employer. Where an employer expressly approves or sponsors a sporting or fitness activity, that activity is deemed to have occurred in the course of a worker’s employment – regardless of whether it takes place during normal working hours or an ordinary recess – and an injury (including a personal injury, a disease or aggravation etc of a disease) suffered as a result of that activity will be compensable under Section 4 WIMA and Section 9 WCA. However, where a worker participates in a sporting activity without the express permission of the employer, and suffers an injury while doing so, the position in relation to liability is far less clear. However, it is unlikely that this injury will be compensable under Section 4 WIMA or Section 9 WCA. Assuming that the activity takes place during an ordinary recess, Section 11 will only apply if the worker is determined to have temporarily left his or her place of employment when he or she participates in the activity that causes the injury. An example of this would be an office worker who works within Sydney CBD who suffers injury while jogging in The Botanic Gardens during his or her lunch break, as that activity - jogging – clearly took place away from the workplace. However, it is conceivable that a worker may engage in an informal sporting or fitness activity at a location that is away from his or her usual place of work, but nevertheless on land owned or occupied by the employer, during his or her lunch break.

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In that event, it is likely that the Workers Compensation Commission may apply the decision of Deputy President Roche in Cox and ﬁnd that unless the worker usually worked at the precise location at which the relevant activity occurred, he or she had temporarily left their place of employment when they participated in the activity. In other words, an ofﬁce worker who left the building in which he or she works during their lunch break, in order to participate in a game of touch football on land that is otherwise occupied by his or her employer, will probably be determined to have temporarily left his or her place of employment. Accordingly, the worker would then be entitled to compensation for the injury - provided that he or she suffered a personal injury and not a disease or aggravation etc of a disease - provided that he or she did not subject himself or herself to an abnormal risk of injury. This is an issue of fact that will have to be determined on the facts of each claim. For example, it is possible that where a worker who participates in a game of touch football on a wet and slippery surface, and suffers an injury as a result of that activity, may be held to have subjected himself or herself to an abnormal risk of injury, such that he or she is not entitled to recover compensation for the injury.

Recommendation It is recommended that when an Insurer receives notiﬁcation of an injury to which Section 11 may apply, factual investigations should be undertaken to ascertain the precise conditions of the worker’s employment (including the location(s)/site(s) at which he or she is required to work), the location at which the injury occurred and the conditions that prevailed at that time and whether or not the activity that caused the injury was approved or sponsored by the employer.

Endnotes 1

[965] Tas SR 77

[1956] WCR 4

(1964) 110 CLR 644

[2001] NSWCC 72

(1994) 10 NSWCCR 437

[1971] WCR (NSW) 75

[1972] WCR (NSW) 155

[1978] WCR (NSW) 111

(2000) 20 NSWCCR 400 (at 411)

[2005] NSWCA 42

[1971] WCR (NSW) 293

[1965] WCR (NSW) 44

[1968] WCR (NSW) 130

(2002) 24 NSWCCR 518

(1954) 90 CLR 1

(1993) 9 NSWCCR 518

(1992) 8 NSWCCR 280

[2009] NSWWCCPD 20

Kyriakidas v Rondo Building Services [1974] WCR 62 at 63

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For more information, please contact:

Michelle Riordan Partner T: 02 8257 5738 michelle.riordan@turkslegal.com.au

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