Written by Workers Compensation Report editor Peter Angelopoulos
Federal Court Justice Mordy Bromberg has found seminal PVYW case law did not apply to a former Linfox Australia Pty Ltd tanker driver.
Justice Bromberg said the PVYW question did not apply to Kym Robert O’Loughlin’s circumstances in the “absence of a finding” by the Administrative Appeals Tribunal (AAT) he was injured during an interval in his duties (WCR 26/08/14). Justice Bromberg found the “AAT was wrong to ask that question in determining whether [O’Loughlin’s] injury occurred in the course of his employment”.
It was “apparent” from Linfox’s submissions to the AAT that its contention High Court majority judges in PVYW addressed a “wider issue” not confined to an injury “sustained outside of the ordinary working period” was “based on a selective reading of particular passages”, he said.
A spokesperson for Comcare, the second respondent in the litigation, told WCR Justice Bromberg agreed with Comcare’s submission PVYW only applied during an interval in an overall period of work. (Comcare joined the action under s108C(8)(b) of the Safety, Rehabilitation and Compensation (SRC) Act 1988.) “Comcare joined this proceeding because we considered the tribunal had misapplied PVYW in this matter. We made no submissions about the facts of this case – only the application of the legal principles in PVYW,” the spokesperson said.
First respondent Linfox had employed O’Loughlin as a tanker driver delivering fuel to petrol stations. On September 7, 2010, O’Loughlin sustained injuries to his face and knee in a violent altercation with another man. At 4am that day, O’Loughlin started work. At about 10:10am he arrived at the site of his second delivery, the Mobil service station in Pascoe Vale, Vic. He established a perimeter by placing cones around his working area. By about 11am he had finished discharging fuel but the hose from the tanker to storage tanks was still draining and petrol fumes were being emitted. A woman drove a car into the service station’s forecourt, honking its horn. A man came out from the service station’s workshop, threw two objects at the car, and struck the windscreen and a window with his fist. O’Loughlin intervened and was assaulted.
Maurice Blackburn senior associate Jacinta Lewin, acting for O’Loughlin, said “since he was assaulted, [O’Loughlin] has had eight operations on his left knee, including a total knee replacement and has been unable to work as a truck driver”. Lewin said “this decision shows that employers will not always be able to rely on the well-known PVYW case to argue injuries have occurred during an ‘interval’ of ‘non-work’ time”. Lewin said O’Loughlin had had no “weekly payments since the beginning of 2014 and is totally unable to work. Fortunately, the Federal Court has agreed [O’Loughlin] was injured in his workplace and the matter will now return to the AAT”.
At first instance, the AAT had found “at the time the injury was sustained, [O’Loughlin] was engaged in service to his employer because the hose was still connected to the underground tank at the service station and the process of delivery of fuel had not been completed”.
However, the AAT agreed with Linfox the High Court majority in PVYW held that for an injury to have occurred in the course of employment “an employee must be doing the very thing that the employer encouraged the employee to do when the injury occurred”. The AAT said that meant the question was whether Linfox “induced or encouraged” O’Loughlin “to engage in the activity at the time the injury occurred”.
In the Federal Court, O’Loughlin challenged whether the AAT correctly applied the statutory test in s5A(1)(b) of the SRC Act to determine whether his injury arose “in the course of” employment.
O’Loughlin argued the AAT asked itself the wrong question in his case.
High Court’s PVYW judgment ‘misread’ by AAT: Justice Bromberg
In his September 10 reasons, Justice Bromberg did not accept that “not whilst engaged in actual work” in the PVYW judgment should be read as meaning “not whilst engaged in ordinary duties or something incidental thereto”. “Rather, I consider the phrase was another way of saying, ‘in an interval in an overall period of work’.”
Justice Bromberg ordered Linfox to pay O’Loughlin’s appeal costs.(O’Loughlin v Linfox Australia Pty Ltd , FCA 1000, 10/09/2015)
(This story first ran in Workers Compensation Report 1034, 15 September, 2015)
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