CITATION: Oaks Hotels and Resorts (QLD) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
(First Respondent) and Natasha Knauer (Second Respondent) (WC/2012/121) - Decision
<http://www.qirc.qld.gov.au>
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission
Oaks Hotels and Resorts (QLD) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) (First
Respondent) and Natasha Knauer (Second Respondent) (WC/2012/121)
INDUSTRIAL COMMISSIONER BLACK
18 December 2013
DECISION
Introduction
[1]
Oaks Hotels and Resorts (QLD) Pty Ltd ("the Appellant") is appealing a decision of the Review Unit of the
Workers' Compensation Regulator ("the Regulator") dated 21 February 2012 to grant a former employee, Ms
Natasha Knauer (Knauer), workers' compensation under section 32 of the Workers' Compensation and
Rehabilitation Act 2003 ("the Act").
[2]
Knauer lodged an application for workers' compensation with WorkCover Queensland ("the Insurer") on 7
January 2011. Knauer's claim was that she had suffered a psychological injury caused by a sexual assault that
occurred at or around 5.00am on 1 December 2010. The Appellant was advised by the Insurer on 21 February
2011 that Knauer's claim had been accepted. On 7 March 2011, the Appellant sought a review of this decision.
On 30 June 2011, the Regulator set aside the Insurer's decision, determining that the matter be returned to the
Insurer to obtain further evidence and to make a new decision.
[3]
After conducting a further investigation and obtaining further factual and medical evidence, by its decision dated
12 September 2012, the Insurer determined that Knauer's claim was one for acceptance. The Appellant sought a
review of this decision to the Regulator. By its decision dated 21 February 2012, the Regulator confirmed the
Insurer's decision that Knauer's claim was one for acceptance.
[4]
The Appellant now appeals the Regulator's decision of 21 February 2012 pursuant to s 550 of the Act.
[5]
By Order of the Commission dated 4 September 2012, Knauer was joined as a party to this appeal.
[6]
Following the release by the High Court of its decision in Comcare v PVYW1 the parties were invited to file
supplementary submissions addressing the implications for a decision in this matter arising from the majority
decision. In response all parties filed supplementary submissions.
Issue for Determination
[7]
The Appellant conceded that Knauer was a "worker" within the meaning of the Act for the purposes of this
appeal. The Appellant also conceded that Knauer suffered a "personal injury", namely post-traumatic stress
disorder with secondary major depression, within the meaning of the Act.
[8]
However it was the Appellant's case that the personal injuries suffered by Knauer did not arise out of, or in the
course of her employment as a Guest Service Agent (GSA) with the Appellant, and/or in the alternative,
Knauer's employment as a Guest Service Agent was not a significant contributing factor to her personal injury.
[9]
Therefore the issue for determination in this appeal is whether Knauer's personal injury arose out of, or in the
course, of, her employment and if her employment was a significant contributing factor to that personal injury.
The parties to the appeal agreed that the appeal did not require a consideration of the exclusion of the injury by
way of reasonable management action pursuant to section 32(5) of the Act.
[10]
Section 32 of the Act relevantly provides as follows:
"32
1
Meaning 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.".
Comcare v PVYW [2013] HCA 41.
2
Jurisdictional Documents
[11]
The jurisdictional documents [Exhibit 1] tendered by the First Respondent were as follows:
• Application for WorkCover Queensland Compensation dated 7 January 2011;
• Decision of WorkCover Queensland dated 12 September 2011;
• Application for Claim Review dated 7 March 2011;
• Q-COMP Review Unit Decision dated 21 February 2012; and
• WCR Notice of Appeal dated 29 March 2012.
Nature of Appeal
[12]
The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the
Appellant.
Standard of Proof
[13]
The standard of proof upon which an appeal of this type must be determined is that of "on the balance of
probabilities".
Evidence
[14]
During the course of the proceedings, evidence was provided by 7 witnesses. The witnesses for the Appellant
were as follows:
• Mr Brett Pointon – CEO, Oaks Hotels and Resorts;
• Mr Michael Anderson – Chief Operations Officer, Oaks Hotels and Resorts;
• Ms Kim Chesswas – Human Resources Manager, Oaks Hotels and Resorts;
• Ms Kirby Somerville – Human Resources Advisor, Oaks Hotels and Resorts; and
• Ms Renae Green – Manager of Lexicon Apartments, Oaks Hotels and Resorts.
The witnesses for the Second Respondent were as follows:
• Ms Natasha Knauer; and
• Dr Quentin Mungomery.
The Regulator did not call witness evidence.
[15]
The evidence in the proceedings is considered in a context where the arrangements made by Oaks in respect to
Knauer or Knauer's employment involved exceptions to normal human resource management practice in the
organisation. Pointon agreed that Knauer was to be regarded as a "special project" (T1- 96). Chesswas used the
term "special project" on a post-it note which is in the evidence as Exhibit 10. The post-it note included the
words: "Big property - Natasha Brett special project". Chesswass explained what was meant at T2-49:
"What does special project encompass?-- Well, by that Brett would have been referring to the fact that he
knew Natasha. I believe she was a previous employee of his - one of his other companies and I believe Brett
was trying to help her get out of a financial struggle and he - he asked us to appoint her to a role accordingly.
And so, in fact, in terms of Ms Knauer there wasn't actually an interview that occurred? She - there was, in
effect, at the direction of Mr Pointon, a vacancy found for her, or a position found for her. That - that's
correct?-- Well, I'm not sure, to be honest if Brett interviewed her or what his process was. But the point
where I heard about it was that she was being appointed to the role. That's correct.".
[16]
Chesswas explained in her evidence that this process was different from the normal recruitment process wherein
HR would undertake a screening process and conduct an initial interview, and the relevant manager would
conduct a second interview. Pointon and Anderson also agreed that it was not the norm for accommodation
arrangements to be made for GSA's. Pointon said that some Oaks employees might get accommodation in
remote locations like Broome, while Anderson said that it was not the practice of the company to provide
accommodation for GSA's.
[17]
It was Knauer's evidence that in early November 2010 she got a call from Kirby Somerville who told her that a
position had opened up in Brisbane at the Oaks Felix and that she would be provided with free accommodation
at the Oaks Lexicon and that she would be staying with Bill Barton. (T1-13). She was told that she had to
arrange to meet with Barton and she was given Barton's mobile phone number and told to call him. She was also
told that her position would be full-time GSA.
3
[18]
Some time after Knauer's discussion with Somerville she rang Barton and said that she wanted to arrange a time
to meet with him. Initially she made an arrangement to meet with Barton on the forthcoming week-end, but that
arrangement had to be rescheduled because of the death of her grandmother.
[19]
Around the same time, Knauer said she wanted to meet with Pointon to discuss the transfer. She said that she
phoned Pointon to arrange a face to face meeting. The meeting took place at some subsequent date at the Oaks
Head Office in Maroochydore. Pointon, Anderson and Knauer attended the meeting.
[20]
Knauer asserted that both Pointon and Anderson were part of a discussion with her in which Pointon informed
her that as part of her transfer to Brisbane she would be trained up as a night caretaker. It was Knauer's evidence
that Pointon said at the same meeting that she was going to stay in the manager's unit with the night caretaker
and be trained up by him (T1-17).
[21]
Knauer's evidence about the meeting is recorded at T1-16:
"I pretty much didn't see the point of moving to Brisbane and it wasn't that much of a difference compared to
my Seaforth job, but then they - Mr Pointon explained to me that he had known Bill for 20-odd years, he was
a trusted family friend, that I was going to be learning the night caretaking role and, yeah, he would teach me
a lot more things within the company and that I'd be pretty much silly to pass down this opportunity, and
Mike Anderson, like, agreed and said that, yeah, I was in good hands and stuff.
Did you discuss the job at the Felix?-- No, because I already knew what was going to be happening with the
Felix. It was going to be the Guest Service Agent and night caretaking at Oaks Lexicon with Bill.".
[22]
After failing to meet with Barton because of the family bereavement, Knauer said she followed up with Barton at
some later point in time. On her evidence she phoned Barton while she was travelling with her family and
partner either to or from Tweed Heads. She indicated to Barton that she would like to meet and that she wanted
to view the unit with her parents, her sister and her partner. However Barton indicated to Knauer that it was not
convenient for him to meet at the time she proposed. Following this telephone exchange, and on the same day,
Knauer received a call from Anderson who passed on to her a view that Barton was unhappy at the prospect of
Knauer's family and partner entering his unit. It was Anderson's advice to her that it was Barton's unit and that
she needed to respect his wishes and that she was not allowed to bring anyone into the apartment.
[23]
Anderson's evidence about the incident was consistent with Knauer's evidence. He said that Barton was
perturbed at the prospect of Knauer's family and partner entering his apartment and asked Anderson to do
something about the intrusion (T2-20). Anderson said he expressed the following sentiments to Knauer (T2-11):
"What I said to her was Natasha, at this stage I'm of the belief that you and Bill have not even met to discuss
whether or not you've got the opportunity to go into the second bedroom if he allows you to. Yet, you're
ringing him asking him to invite your brother, your mother, your father and Ben over. Right? Would it be
not more sensible that you find time to sit down and have a dialogue with Bill about the opportunity that he
may or may not give you to occupy that second bedroom.".
[24]
In the end result Knauer met with Barton and viewed the apartment on either 27 or 28 November, 2010. Knauer
accepted at T1-52 that it was only after she met Barton on the 28th of November 2010 that she agreed to move
into the spare bedroom. The arrangement from there was that Knauer would move into the apartment on the 30
November 2010, the day prior to her commencing work at the Felix at 10.00am.
[25]
Knauer's further evidence was that about 4.30pm on the afternoon of November 30 2010, Barton phoned her and
told her that she "had to come to the Lexicon because he had important work-related things he had to show me
and if he was to break his arm, I was going to be in charge." (T1-20).
[26]
In respect of her time spent in the Lexicon on 30 November and 1 December 2011, Knauer said that she did not
discuss any aspects of Barton's caretaking work with him, nor did Barton show her any documents in relation
thereto, however she did observe some of Barton's paperwork which showed guest arrivals for that evening.
[27]
Somerville's evidence was that in November 2010 Chesswas instructed her to contact Knauer regarding her
employment in Brisbane and about "the possibility of temporary accommodation in Brisbane" (T2-55). A post-it
note in the evidence as Exhibit 13 was a contemporaneous record of the some of the content of the instruction
passed from Chesswas to Somerville. Chesswas's evidence about the matter at T2-40 was to the effect that she
wrote the post-it note when Pointon spoke to her about Knauer's transfer. She said that Pointon told her that
Knauer would be moving to a larger property at the Felix where the roster was larger and Knauer could train
with other staff as a guest service agent. Pointon also told her that Knauer's start date at the Felix would be 1
December 2010.
4
[28]
Somerville recalled Chesswas's instructions to her in the following terms:
"That I was to speak with Bill and Natasha regarding both the guest service agent role in Brisbane as well as
the temporary accommodation offer that was going to be given to Natasha." (T2-56)."
[29]
Following receipt of these instructions Somerville said that on 8 November 2010 she spoke to both Barton and
Knauer (T2-57). Somerville said that she told Barton that she was instructed to speak with him about the
possibility of sharing his accommodation with Knauer. She said that during the conversation Barton told her that
he wished to speak to Knauer.
[30]
Following this discussion Somerville telephoned Knauer and told her that she was "calling from Oaks Hotels and
Resorts and was ringing regarding her guest service agent role in Brisbane and the possibility of accommodation
at the Oaks Lexicon with Mr Barton". Somerville also said that she advised Knauer that "she had the
opportunity to meet with Mr Barton and to decide if she was comfortable living with him" and that Barton was
"also comfortable living with her" (T2-57). She also told Knauer that the accommodation would be free and she
said that she passed on the same information to Barton.
[31]
Chesswas also said that when Pointon spoke to her about Knauer's transfer (T2-44) he intimated that he told
Knauer that he would talk to Barton as he knew that Barton was only using one bedroom of the two bedroom
apartment. Pointon also told her that Knauer could live in the apartment free of charge on a temporary basis as
long as both Knauer and Barton agreed to the arrangement. One of the notations on the post-it note made by
Chesswas reflected this arrangement. The words in question were "Ask Bill if okay and ask her if okay, (64
yrs)".
[32]
It was Pointons evidence that in late October or early November in 2010 he arranged a meeting with Knauer and
Anderson following the decision taken by Oaks not to transfer Knauer to Townsville. Pointon said that he had
made a decision prior to the meeting that Knauer could not stay at the Seaforth and that the only suitable
placement for her was at the Felix. He said that in the meeting he made it clear to Knauer that "there was no
alternative placement available and that was where she was to be placed". He said that he "had to place her
somewhere. I had run out of options." (T1-86).
[33]
He explained how he opened the meeting as follows (T1-77):
"I tried to take her through the history of where we'd been and where we went. I talked to her about how she
came in, her GSA training. I talked to her about the reasons why we couldn't allow her to be in Townsville,
because it was an unsupervised roster. I talked to her about having no opportunity in Seaforth, she was just
an extra to the roster at Seaforth, and then I talked to her about the opportunity which existed in Brisbane in
Felix.".
[34]
Pointon said that he told Knauer in the meeting that working in the Felix would represent a "good opportunity
for her because the rosters had a lot more people in them" and that "she would be able to get a lot more training
in that particular role, and it also would be good experience working in the corporate marketplace." (T1-77).
[35]
Pointon accepted that Knauer was reluctant to accept the transfer and that she "would have loved to stay at
Seaforth" (T1-98). He said that Knauer raised a number of reasons in explaining why she was not enthusiastic
about the move (T1-77):
"... Can you just outline for the Commission to the best you can recollect what each of the concerns were
that she raised?-- When she talked about, "How am I ever going to get down there?", the first solution I had
from that is, "Well, Natasha, lots of people drive from the Sunshine Coast and the Gold Coast, so you could
drive down there." She was nervous and came back and said, "Look, I've never driven in Brisbane before so
I'm not sure about that", so that's not something I wanted to pursue at all. The second thing is train travel.
She could drive 10 minutes down the road, pick up a train and go right into the heart of the city. I talked to
her about train travel. She came back to me and she said, "Look, I've never got on a train, I wouldn't know
how to do that", and I assured her she probably would learn that. I asked her about any family, friends,
relatives in Brisbane that she could stay with so that then she could go to work from there. She said, no, she
had none of those, no family, no friends, no relatives in Brisbane, that wasn't an option. So I kept on working
through and then I came up with the option of asking Mr Barton whether that would be possible.""
[36]
Anderson's evidence in respect to the matter is recorded at T2-8:
"What was Ms Knauer's response to what Brett said about the job being available at the Felix?-- Oh, Natasha
was enthusiastic about it. But she had some apprehension and disclosed her apprehension in that meeting
about travel and accommodation and her financial predicament.
5
Can you recall exactly what she said?-- Yes. She said to Brett and I that - you know, how am I going to get
there, how am I going to travel there every day and, you know, if I - if I stay down there I don't know
Brisbane. I'm very apprehensive about going to Brisbane. They weren't the words she used. She didn't say
apprehensive, but nervous about going to Brisbane.
All right?-- And I'm worried about where I'm going to get accommodation. I haven't got the financial
resources.".
[37]
In terms of the proposed accommodation arrangement with Barton, Pointon said that he told Knauer that there
might be an opportunity for Knauer to share Barton's apartment on a temporary basis but that he would have to
"speak to Mr Barton because it was his house, it was where he lived, and he would have to approve of that for
Ms Knauer to even be able to stay there". Pointon then said that he offered to call Barton to explore the option if
Knauer wanted him to do this. He told Knauer that if Barton was happy with the arrangement he would arrange
for Knauer to meet with Barton. He said that if after that meeting both Knauer and Barton were happy with the
arrangement then "they could do whatever they like." (T1-80).
[38]
After the meeting Pointon said that he had called Barton and discussed the matter with him. His evidence in this
regard is recorded at T1-80:
"Okay. And what did you say to him?-- I explained to Mr Barton the circumstances, Natasha's
circumstances, where she came from, a little bit about her background. I then asked him whether or not he
would accept her maybe staying with him for a period of time till she got on her feet, whatever.".
[39]
Subsequently Pointon phoned Knauer and told her that Barton was agreeable to meet with her "to determine
whether or not he would accept her into his house or whether he wouldn't accept her into his house." (T1-81).
[40]
Pointon denied that he had discussed with Knauer the prospect of her performing caretaking duties and explained
why Knauer could not have been considered for caretaking duties (T1-102):
"Let's have a look the responsibilities at Lexicon. We've probably got $50 million worth of assets sitting at
Lexicon. I'm responsible to all those owners within the Group. I probably have 300, 400 people living in
that building. So to put somebody in charge of that building, you would have to assume that we would put
somebody who is a very, very responsible person, and somebody that we would be comfortable, that they
could respond to any emergencies, they could make sure they had the ability to be able to do what was
necessary in a case of emergencies. Let's now have a look at Natasha.
Natasha couldn't get through GSA training. Natasha could not work up in Townsville on her own because
she didn't have the skills to work up at Townsville on her own. There would never be a situation where we
would leave a person of that level of skill in charge of a building. We wouldn't even suggest that, just in case
she thought that would be part of her role.
Can I now put to you the question that I originally put to you?-- Yes.
The question that I originally put to you was not her being appointed as a caretaker, it was her being trained
in the role to aid her progression?-- Yes, that's right. We would never want her to be trained in the role as
caretaker. Based on her skill level, that would never, ever be a suggestion. We would never put the building,
even in a trainee role, in the hands of somebody with that capability. It just makes no sense.".
[41]
In his evidence Anderson also rejected the proposition that in the meeting with Knauer and Pointon a discussion
took place about Knauer performing caretaking duties (T2-8).
[42]
Knauer agreed that the HR Manager, Ms Chesswas, never spoke to her about performing any night caretaking
duties. Also Knauer did not claim that Somerville raised the issue when she phoned Knauer to inform her of the
transfer. This evidence was consistent with the evidence given by Chesswas and Somerville. Chesswas's
evidence was to the effect that when Pointon made the call that she made a record of on a post-it note there was
no discussion between her and Pointon about Knauer being trained to perform caretaking duties (T2-42).
[43]
It was Somerville's evidence that Chesswas did not say anything to her about Knauer performing caretaking
duties. Somerville also said that in her telephone discussions with Knauer she never mentioned anything about
Knauer performing caretaking duties (T2-60) or being trained in the caretaking role (T2-68). Knauer agreed that
Chesswas never spoke to her about performing any night caretaking duties.
[44]
While Knauer said that she recalled the Manager of the Oaks Seaforth, Scott Cunnington, making a statement to
the effect that "everyone trains to be a night caretaker", she agreed that Cunnington never had any discussions
with her about performing night caretaker duties. (T1-42). In his evidence, Anderson agreed that it was not
6
uncommon for GSA's employed by Oaks to perform caretaking duties and that at least two GSA's had on
occasions undertaken the caretaking role at the Oaks Seaforth property at Maroochydore, however these
particular employees were very accomplished GSA's.
[45]
Knauer accepted that she did not receive any training as a night caretaker during her period of employment at the
Seaforth. In this regard Knauer gave the following evidence at T1-43:
"So you never received any - in the entire time you were there with Oaks, you never received any training as
a night caretaker?-- No.
And in the entire time that you worked at Oaks, you never worked as a night caretaker, did you?-- Yes, I
did.".
[46]
While Knauer may have been sensitive to the implication in the latter question, her answer gave rise to some
inconsistency in her evidence in that she had agreed in examination in chief that she never performed any
caretaking functions during the very short period that she stayed in the Oaks Lexicon on the afternoon and
evening of 30 November. Notwithstanding this it was Knauer's evidence that on the night of 30 November she
was in the manager's unit at the hotel and that she "was there for work" (T1-53).
[47]
Barton did not give evidence in the proceedings but an email in the evidence as Exhibit 7 provided some insight
into his perspective on the proposal that he share accommodation with Knauer. Barton asked the Manager of the
Lexicon, Renae Green, to forward the email to Anderson on the morning of 30 November 2010. The email
contained an attachment which was a scanned copy of a handwritten note prepared by Barton. The email
recorded that Barton wanted the note to be forwarded to Anderson as a matter of urgency.
[48]
The handwritten note canvassed a number of matters under the heading "Rules for Natasha's Residence".
Included in the matters were the following:
-
[49]
“3 mths trial commencing 5.30pm Thursday 30/11”
A series of rules relating to an audit of Knauer's possessions, Barton's possessions and
Oaks' possessions
"Suggestion - Natasha be trained to assist Bill every night not affected by Felix situation"
Green's evidence in respect to the communication is set out at T2-74:
"Did Mr Barton ever have a discussion with you where he indicated that he may be training Ms Knauer in
the-----?-- He said that he - he - he thought it might be a good idea and I said, no, I said, no, you're the
caretaker. I - I don't know Natasha from bar a soap, I'll wait and see what happens with Oaks on Felix. I
mean, didn't know who she was and she wasn't my member of staff so - and I didn't even know, I wasn't even
told officially that she was going to be staying there.
But - but he did have that conversation with you about that?-- Yeeah, he mentioned that he thought it might
be a good idea and I said no.".
[50]
It was Anderson's evidence that he did not view the email and its attachment until after 2 December 2010. He
said that he was in Adelaide on November 30 and did not read emails. Further it was his evidence that he never
had a conversation with Barton about Knauer performing caretaking duties.
[51]
Pointon explained the nature of the arrangement that he had entered into with Barton dealing with his occupancy
of the apartment at the Lexicon at T1-100:
"The apartment was owned by Oaks Resorts Queensland. The agreement with Mr Barton was that was to be
his house, his residence. He could live there free of charge and, in return for that, he would provide some
services. So Mr Barton had the same rights as any other tenant would have had in that apartment, provided
he didn't punch holes in the wall or do whatever, he really could do whatever he liked in that particular
apartment, because that was his house, that was his home, that's what I gave him.".
Credit
[52]
The Appellant launched an attack on the credit of Knaur arising from parts of her evidence and submitted that, in
the event of conflict, the Appellant's evidence was to be preferred over Knaur's evidence.
[53]
The attack on credit was primarily based on evidence given by Knauer's when cross-examined about her medical
history. The Appellant submitted that a failure by Knauer to disclose to Dr Mungomery certain particulars of her
"psychological state of health" between December 2007 and February 2012 should lead to a conclusion that
7
when it comes to contested facts, the Commission should be wary of the truthfulness of Knauer's version of
events.
[54]
The first and second respondents argued that the attacks on credit were misconceived. It was said that the
history taken from Knauer by Dr Mungomery related only to the period 1 December 2009 to 1 December 2010,
whereas the cross-examination of Knauer by the Appellant included reference to a number of consultations
occurring prior to 1 December 2009. Further the answers given by Knauer to these questions should be
evaluated in the context that Knauer was never asked whether she knew or was aware that she was being
diagnosed with a psychiatric condition.
[55]
I am not prepared to make findings of credit adverse to Knauer arising from cross examination about her medical
history. Her medical history, which was cluttered with an unusually high number of events for a person of her
age, can fairly be regarded as detailed and complex. I accept that in these circumstances Knauer's flawed recall
of all the particular circumstances associated with each consultation was understandable and she should not be
forensically held to account for failing to give fulsome and accurate responses to all questions put to her,
particularly questions which related to consultations that occurred some years prior.
Appellant's Submissions on the Evidence
[56]
The Appellant submitted that three factual questions needed to be answered, namely:
(a)
(b)
(c)
[57]
Whether Knauer was required by the Appellant to reside in the spare bedroom in Barton's apartment at
the Lexicon for the purposes of undertaking the GSA role at the Felix or whether Knauer's
accommodation in the spare bedroom in Barton's apartment at the Lexicon was as a result of a private
and temporary residential agreement between herself and Barton;
Whether Knauer was to be trained to be a caretaker at the Lexicon; and
Whether, on the evening of 30 November 2010 and early morning on 1 December 2010, Knauer was
performing work as a caretaker at the Lexicon.
In respect to these questions, the Appellant submitted that the evidence supported the following findings:
(a)
(b)
(c)
(d)
(e)
(f)
That Knauer was not required by the Appellant and was not directed by the Appellant to reside at the
Lexicon as part of her taking up duties at the Felix on 1 December 2010;
That Knauer's accommodation in the apartment was as a result of the agreement reached between her
and Mr Barton for her to reside there on a temporary basis;
That Knauer was not required by the Appellant to reside in the apartment and her temporary residence
in the apartment was not a condition of her employment at the Felix or as a GSA with the Appellant;
That the Appellant, or anyone authorised on behalf of the Appellant, had not proposed or had not
decided, that Knauer was to be trained to perform work as a night caretaker at the Lexicon;
That the Appellant, or anyone authorised by the Appellant, had not directed or required Ms Knauer to
perform caretaking duties at the Lexicon on the evening of 30 November 2010 or on the morning of 1
December 2010;
That while Barton, at his own initiative, may have aspired that Ms Knauer perform caretaking work,
his aspirations were never communicated to the Appellant prior to or on 1 December 2010 and were
never acted upon by the Appellant. When such aspirations were raised by Mr Barton with Ms Green
they were rejected out of hand by her.
Further Submissions of the Appellant
[58]
In the first instance the Appellant argued that there was no evidence that there was a causal or consequential
connection between Knauer's personal injury and her employment as a GSA at the Felix Avis v WorkCover
Queensland2 and in WorkCover Queensland v Curragh3. Further the evidence does not support a finding that
Knauer's personal injury arose out of her employment as a GSA at the Felix. This submission was based on the
following propositions:
(a)
(b)
(c)
(d)
2
3
Knauer had not performed any work at all for the Appellant since 24 November 2010 when she last
worked at the Seaforth;
Knauer did not perform any work at all as a GSA at the Felix on 1 December 2010 or after that;
Knauer was not required or expected by the Appellant to perform any work in any capacity at the
Lexicon;
Knauer did not in fact perform any work in any capacity at the Lexicon on the evening of 30
November 2010 or in the early morning of 1 December 2010;
Avis v WorkCover Queensland (2000) 165 QGIG 788.
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6 [7].
8
(e)
At the time of the incident between Barton and Knauer, Knauer had been asleep, and the incident took
place in her bedroom.
[59]
In the second instance the Appellant argued that Knauer's personal injury did not arise in the course of her
employment as a GSA at the Felix. In this regard the Appellant submitted that an injury in the course of
employment means an injury that is sustained while the worker is engaged in the work he or she is employed to
do, or in something which is concomitant of, or reasonably incidental to, the person's employment do to that
work (Commonwealth of Australia v Lyon4).
[60]
In relying on the principles in Lyon the Appellant argued that a conclusion cannot be arrived at that Knauer's
personal injury arose in the course of her employment as a GSA at the Felix for the following reasons:
(i)
There is no temporal connection between the Appellant's personal injury and her employment as a
GSA at the Felix. That is, Knauer did not suffer her injury whilst she was engaged in the work she
was employed to do.
(ii)
Knauer did not sustain her personal injury in doing something which was concomitant of or
reasonably incidental to her employment as a GSA at the Felix. That is, Knauer was not injured when
she was doing something that accompanied her work as a GSA at the Felix, nor was she doing
something that was incidental to her employment at the Felix. For example, Knauer was not injured in
circumstances where she was required by the Appellant to walk to a bank to bank monies.
[61]
It was submitted that having regard to the principles in Hatzimanolis v ANI Corporation5, the last time that
Knauer performed any work for the Appellant was on 24 November 2010 when she worked at the Oaks Seaforth.
Knauer was off work from that date until she was required to start work at the Felix as a GSA on 1 December
2010. That is, there was not one overall period of work performed by Knauer between 25 November 2010 and 1
December 2010 such that if she was injured during an interval or interlude, she was not injured during an
interval or interlude between actual periods of work in an overall episode of work.
[62]
It was also argued that even if it is found that Knauer was injured in an interval or interlude between actual
periods of work in an overall episode of work, there is no evidence that the Appellant, her employer, encouraged
or induced Knauer to spend that time, namely the interval or interlude between actual period of work in an
overall episode of work, in Barton's apartment. It was put that the reason why Knauer was temporarily residing
in Barton's apartment was as a result of a private agreement between her and Barton. There was no evidence that
Pointon or Somerville encouraged Knauer to temporarily reside with Barton in the spare bedroom in his
apartment at the Lexicon, or that they induced her to reside in the spare bedroom of Barton's apartment at the
Lexicon.
[63]
In a supplementary submission filed to address the decision given by the High Court in Comcare v PVYW6 it was
submitted that the application of the principles derived from the majority High Court decision to the facts and
circumstances of this case produces the following conclusions:
(i)
(ii)
Knauer suffered an injury but not whilst she was engaged in actual work as a GSA at the Felix; and
Knauer's injury was suffered by reference to place, namely Barton's apartment at the Lexicon, because
Knauer was not performing caretaking duties at the Lexicon at the time of injury; and
(iii) The employer did not encourage or induce Knauer to be in Barton's apartment at the Lexicon at the
time she suffered her injury. To the contrary Knauer was temporarily residing in the apartment arising
from a private agreement entered into between herself and Barton; and
(iv) Knauer was engaged in an activity at the Lexicon at the time of her injury which was completely
unrelated to her employment as a GSA at the Felix.
[64]
In these circumstances, it was submitted that the majority decision of the High Court in Comcare v PVYW7
further supported the Appellant's claim that Knauer did not suffer an injury within the meaning of the Act.
[65]
The Appellant submitted that if the same incident had occurred in a private residence occupied by Barton away
from and unrelated to his employment, then Knauer's injury could not be said to arise out of or in the course of
her employment within the meaning of s 32(1) of the Act. On the facts of this case, the Lexicon apartment
should be considered to be Barton's private residence. The fact that it was provided to him as the reward for
performing caretaking duties does not change that fact that the apartment was Barton private's residence.
4
Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 per Deane J.
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
6
Comcare v PVYW [2013] HCA 41.
7
Comcare v PVYW [2013] HCA 41.
5
9
[66]
The Appellant finally submitted that Knauer's employment as a GSA at the Felix was not a significant
contributing factor to her injury. In this regard the Appellant argued that having regard to the test articulated by
President Hall in Kennerley v Q-COMP and Qantas Airways Limited8, it could not be concluded on the evidence
that:
(i)
(ii)
Knauer's employment as a GSA at the Felix was a strong factor to her injury;
But for her employment as a GSA at the Felix, Knauer would have been injured given that it was not a
term of her employment and it was not a direction of the Appellant that Knauer temporarily reside
with Barton;
(iii) Knauer was encouraged or induced by the Appellant to reside, temporarily with Barton. The
submission was that this arrangement was made between Barton and Knauer and that Barton could
have rejected the arrangement as could have Knauer. All the Appellant did was put the two of them in
contact with each other.
First Respondent's Submissions on the Evidence
[67]
The First Respondent submitted that there were two grounds upon which the Commission could find that
Knauer's injury arose out of or in the course of employment where the employment was a significant
contributing factor to the injury. Firstly the Commission could accept Knauer's evidence that Oaks intended that
she be trained by Mr Barton in the caretaking role at the Oaks Lexicon in addition to her duties as a GSA at the
Oaks Felix. In this regard it was the First Respondent's submission that it was never the contention of either of
the respondents to the appeal that Knauer was to be appointed as a caretaker; rather it was the contention that
Knauer was to receive some training in the caretaking role either to assist Barton or to contribute to her
development in the role of a GSA. In support of this contention attention was drawn to the evidence of
Anderson who confirmed that GSA's had on occasions been trained in the caretaker role and had on occasions
undertaken the role of a caretaker.
[68]
The alternative or second ground upon which the Commission could find that Knauer's injury was within the
course of employment where employment was a significant contributing factor was by the Commission making
the following findings of fact:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
[69]
In regard to the circumstances associated with Knauer's transfer and occupancy of Barton's unit, the first
respondent submitted that the following conclusions should be drawn from the evidence:
(a)
(b)
(c)
(d)
8
The Appellant needed to find Knauer a position as a GSA somewhere in the organisation because her
position at Oaks Seaforth was surplus to requirements and therefore causing Oaks Seaforth to be over
budget;
The Appellant offered Knauer a position in Brisbane as a GSA;
Knauer was reluctant to take up the position and her preference was to remain on the Sunshine Coast;
Knauer had concerns about how she would travel to work from the Sunshine Coast and also had
concerns about her accommodation in Brisbane due to not having family or friends to stay with and
not being in a financial position to afford other accommodation in Brisbane;
To address Knauer's concerns, the Appellant offered Knauer free accommodation for an unspecified
period of time until she got on her feet in a unit owned by the Appellant, in a building controlled and
operated by the Appellant, and in which the Appellant operated a hotel business;
The Appellant directed or placed conditions upon Knauer's occupation of the unit in that she was not
able to bring other people (including family) to that unit;
The offer of accommodation necessarily involved Knauer living with another employee or agent of the
Appellant;
The Appellant travelled to Brisbane from the Sunshine Coast on 30 November 2010 and moved some
of her clothes and possessions into the apartment around 5.00pm. in preparation for commencing work
at Oaks Felix the next day at 10.00am;
Knauer retired to bed on the evening of 30 November utilising the bedroom supplied to her by her
employer. At the time of the assault at 5.00am Knauer was asleep in her bed in her room in the
apartment;
Barton was an employee of the Appellant, not an agent or a contractor.
That the decision to place Knauer at the Oaks Felix was taken by Pointon and Anderson;
That there was no other option other than to place Knauer at the Oaks Felix;
That it was effectively the offer of free accommodation that ultimately encouraged or induced Knauer
to accept the position at the Oaks Felix;
That Knauer required that accommodation be provided in order for her to accept the transfer;
John Kennerley v Q-COMP and Qantas Airways Ltd (C/2012/18) - Decision - <http://www.qirc.qld.gov.au>.
10
(e)
That Knauer's presence in the accommodation provided at the Lexicon was to enable her to be able to
commence her shift at the Felix at 10am the following morning;
That Oaks was the owner and had full control of Barton's apartment in the Lexicon;
That at all times of the transfer process Oaks remained in control of the entire process and in effect
was directing both Barton and Knauer what was to occur;
The Appellant, as Knauer's employer, has encouraged or induced her to be in the very apartment in
which the assault occurs and therefore the injury arises in the course of her employment and her
employment is a significant contributing factor;
Knauer's use of the bedroom in the apartment was something that the Appellant as the employer,
either would have expected her to do, or it would have been in the contemplation of the Appellant that
she would use the accommodation for the purpose. There was no use of the facility other than in the
manner that she had been authorised, permitted and encouraged to do by the Appellant.
(f)
(g)
(h)
(i)
Second Respondent's Submissions on the Evidence
[70]
The second respondent submitted that findings on the evidence are to be made in the context of the particular
circumstances which led Knauer to be in the caretaker's unit at the Lexicon at the time of the assault. In this
regard the following background facts were said to be relevant:
•
•
•
•
[71]
Knauer had been employed by the Appellant as a full time permanent GSA since 9 August 2010 and
had worked at Oaks Seaforth on the Sunshine Coast;
Knauer's employment occurred at the direction of Brett Pointon, a director of the Appellant and CEO
of the Oaks Group;
Knauer satisfactorily completed her probationary period, the relevant assessment being completed
on 31 October 2010;
In late October / early November 2010, Pointon and Anderson, took a decision to place Knauer in a
GSA position at the Oaks Felix, an Oaks property in Brisbane managed by the Appellant.
The second respondent submitted that the following evidence was significant:
•
•
•
•
•
•
Pointon and Anderson told Knauer that the position at the Felix presented a good opportunity for
her and she was encouraged to accept the position. However, Knauer had no option. Pointon
considered that he had no alternative but to transfer her to the Felix, and that was where she was to
be placed.
Pointon phoned Barton to ask him whether Knauer could stay in the caretaker's unit at the Lexicon
for a period of time "till she got on her feet ...". Barton agreed to meet with Knauer. Pointon then
rang Knauer and gave her Barton's phone number. Pointon said that "it was something that I was
trying to arrange or facilitate as quickly as I possibly could.".
The burden of the evidence is that the Appellant effectively organised temporary accommodation
for Knauer in the caretaker's unit at the Lexicon in order to ensure that she could take up the
transfer position at the Felix.
Further, the Appellant attached conditions to Knauer's residence in the Lexicon accommodation. In
November 2010, after Barton expressed concern to him about Knauer bringing members of her
family to inspect the unit, Anderson directed Knauer not to take anyone to the unit.
That the Appellant imposed similar conditions on Knauer in respect to an accommodation
arrangement that was proposed for a position in Townsville in December 2010.
That the Appellant maintained clear control over the accommodation arrangements put in place for
Knauer.
Further Submissions of the First and Second Respondents
[72]
In dealing with the line of authorities relevant to the whether an injury occurs in the course of employment, the
second respondent submitted that one line of authority started with Hatzimanolis9, dealing with injuries
occurring in an interval or interlude within an overall period or episode of work. Many of those authorities dealt
with situations where the worker had been sent from his or her home base to another locality to perform work on
a temporary basis, and the injury had occurred at a time when actual work was not being performed, often during
the course of, or associated with, recreational pursuits. Thus, injuries were found to be compensable in the
following circumstances:
•
9
where a worker was injured when showering at her hotel before proceeding to her place of work in
a country town where she had been required to travel by her employer: Comcare v McCallum10;
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
Comcare v McCallum [1994] FCA 975; (1994) 49 FCR 199.
10
11
•
•
•
•
•
•
where the worker was assaulted in the car park of a motel in a town where he had been temporarily
assigned to work and after he had visited two hotels that evening and was returning to his residence
after midnight: Kennedy v Telstra Corporation11;
where the worker died in a van provided by his employer for his accommodation, when the van
caught fire, after the worker had finished work for the day: Danvers v Commissioner for Railways
(NSW)12;
where a shearer was shot and badly injured while asleep in the jackaroo's cottage about 400
hundred yards from the shearers' quarters on the property where he was working: McCurry v
Lamb13;
where the worker was employed as a plant operator at the employer's mine and was injured while
stepping out of the shower at an accommodation centre the evening before leaving the job to return
to his home several hundred kilometres away: Leighton Contractors Ply Ltd v Q-Comp14;
where the worker was injured when retrieving his washing from a clothesline in accommodation at
a work camp supplied by his employer where he worked a four days on/four days off roster and
spent his time off at his home 170 kilometres away: Thiess Pty Ltd Q-Comp15;
where a long haul flight attendant who resided in Brisbane was injured in Los Angeles while
returning from lunch to her hotel on a scheduled break between flights, the hotel accommodation
having been arranged and paid for by her employer: Qantas Airways Ltd v Q-Comp and Blanch16.
[73]
The respondents drew attention to the fact that, in a number of the abovementioned cases, the worker was not
required to stay in the accommodation at which, or proximate to which, the injury occurred. However, as the
Court intimated in Hatzimanolis17, such cases fall within the stream of cases where the employer authorised,
encouraged, induced or permitted the employee to spend time during the work interval at a particular place or in
a particular way. It was also submitted that the modern authorities make clear that the "course of employment"
is not identical with the period of employment of a worker or with the work which that person performs.
[74]
In applying the reasoning of this line of authorities to the facts of the subject appeal, the respondents submitted
as follows:
"Although Knauer was not required to work away from home for a fixed period of time, her circumstances
bear in other respects remarkable similarities to the "interlude" cases. Her transfer to Brisbane was
involuntary. She had no practical choice but to take up the accommodation in the caretaker's unit at the
Lexicon, due to her personal circumstances, including her financial circumstances. The accommodation was
organised by the Appellant which authorised, encouraged and permitted the second respondent to take up the
accommodation. The Appellant further facilitated the arrangement by ensuring that the accommodation was
free. In further exerting its control over the arrangement, the Appellant attached conditions to the second
respondent's occupation of the accommodation i.e. she was not allowed to bring other persons to the
accommodation and the arrangement was to be temporary. The activity in which the second respondent was
engaged at the time of the injury was one which was readily contemplated by the Appellant."
[75]
11
It was submitted that no distinction should be drawn between Knauer's circumstances and the circumstances
applicable to the large number of other claimants who have successfully claimed in respect of injuries that they
have sustained whilst staying in accommodation provided by their employers. In referring to cases including
Comcare v McCallum18, McCurry v Lamb19, Inverell Shire Council v Lewis20, Thiess21, and Leighton22, it was
submitted that only a very artificial distinction could be drawn between Knauer's circumstances and those of the
claimants in the cases cited.
Kennedy v Telstra Corporation (1995) 61 FCR 160.
Danvers v Commissioner for Railways (NSW) 91969) 122 CLR 529.
13
McCurry v Lamb (1992) 8 NSWCCR 556.
14
Leighton Contractors Pty Limited v Q-COMP (WC/2011/7) 2011- Decision - <http://www.qirc.qld.gov.au>.
15
Thiess Pty Ltd v Q-COMP (C/2010/11) - Decision - <http://www.qirc.qld.gov.au>.
16
Qantas Airways Ltd v Q-COMP AND Michelle Blanch (C/2009/9) - Decision - <http://www.qirc.qld.gov.au>.
17
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
18
Comcare v McCallum [1994] FCA 975; (1994) 49 FCR 199.
19
McCurry v Lamb (1992) 8 NSWCCR 556.
20
Inverell Shire Council v Lewis (1992) 8 NSWCCR 562.
21
Thiess Pty Ltd v Q-COMP (C/2010/11) - Decision - <http://www.qirc.qld.gov.au>.
22
Leighton Contractors Pty Limited v Q-COMP (WC/2011/7) 2011- Decision - <http://www.qirc.qld.gov.au>.
12
12
[76]
The respondents also relied on Kennerley23 where Hall P. considered the question of "whether the workman was
doing something which he was reasonably required, expected or authorised to do in order to carry out his duties".
Hall P. also applied the principle that:
"In determining whether the injury occurred in the course of employment, regard must always be had to the
general nature, terms and circumstances of the employment 'and not merely to the circumstances of the
particular occasion out of which the injury to the employee has arisen.".
While saying that the application of the "but for" test need not be satisfied, Hall P. remarked that in the
circumstances of that case, but for his employment, the worker would not have been injured.".
[77]
By parity of reasoning with Kennerley24, and the other cases referred to above, the respondents submitted that the
Commission should conclude that Knauer's injury occurred in the course of her employment. She was
encouraged to stay in the accommodation at the Lexicon. The general nature and circumstances of her
employment, and her personal circumstances, dictated that arrangement. The arrangement was authorised and
controlled by the Appellant. But for her employment, the second respondent would not have been sleeping in
unit 402 at the Lexicon at 5am on 1 December 2010. There was a sufficient nexus with her employment.
[78]
It was submitted that the High Court decision in Comcare v PVYW25 confirms the view that Knauer's injury was
compensable under the terms of the Act. It was submitted that on any proper analysis of the facts and the
evidence, Knauer was induced and encouraged by the Appellant to move into the Lexicon apartment. It was
submitted that Knauer's injury occurred in an interval between periods of work at a place where the second
respondent had been encouraged by the Appellant to stay for the purposes of her ongoing employment. If it is
held that the injury occurred by reference to place, Knauer was induced or encouraged by her employer to be at
that place in connection with her employment. Alternatively if the injury occurred by reference to activity, the
proximate activity of sleep in accommodation arranged for her by her employer is to be seen as an activity which
the employer would have induced, encouraged or expected the employee to engage in.
[79]
It was submitted that a conclusion that Knauer's presence in the room at the time of the attack was sufficiently
incidentally connected to her employment at the Oaks Felix for the Commission to support a finding that
Knauer's injury has arisen in the course of her employment. The association with employment is demonstrated
in particular by the fact that the employer owned the Oaks Lexicon apartment; that Knauer was provided with
free accommodation; that the free accommodation was offered to encourage Knauer to take up the position at the
Oaks Felix; that Knauer's ability to take up the position at the Oaks Felix was dependent upon her having the
accommodation provided by the employer; and that Knauer's occupation of the room at the Oaks Lexicon was
necessary for her to be in a position to commence work at the Oaks Felix at 10am on 1 December 2010.
[80]
The respondents also submitted that Knauer's injury arose out of her employment. It was argued that it was
Knauer's employment which brought her to the place where the injury occurred and, but for her employment, she
would not have been there. The accommodation at the Lexicon was not a private arrangement and was one
which evolved solely from the circumstances of her employment.
[81]
In this regard the respondents relied on the decision of Murphy J in Telstra Corporation Ltd v Bowden26, where
his honour concluded that, for an injury to have arisen out of employment, a sufficient causal connection must
exist between the injury and the employment. Further his honour cited with approval a passage from Lawrence v
George Matthews27 where Russell LJ held that:
"sufficient ... 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 normally subjected.".
[82]
23
Finally, the respondents submitted that the Commission should find that there was sufficient connection between
Knauer's employment and the injury for the employment to be a significant contributing factor to that injury. In
this regard the second respondent noted that in answering the question in Qantas Airways Ltd v QComp and
Blanch28, Hall P regarded as important the fact that, but for her employment, the worker would not have been at
John Kennerley v Q-COMP and Qantas Airways Ltd (C/2012/18) - Decision - <http://www.qirc.qld.gov.au>.
John Kennerley v Q-COMP and Qantas Airways Ltd (C/2012/18) - Decision - <http://www.qirc.qld.gov.au>.
25
Comcare v PVYW [2013] HCA 41.
26
Telstra Corporation Ltd v Kane Bowden [2012] FCA 576.
27
Lawrence v George Matthews (1924) Ltd [1929] 1 KB 1.
28
Qantas Airways Ltd v Q-COMP AND Michelle Blanch (C/2009/9) - Decision - <http://www.qirc.qld.gov.au>.
24
13
the place of the accident at the time it occurred. It was also submitted that Linnane VP used similar reasoning in
Leighton29. Further in Blanch30, other relevant factors included that the employer foresaw and encouraged the
activity in which the worker was engaged when the accident occurred. The second respondent submitted that
each of those factors was present in Knauer's case together with other factors which point decidedly to the
sufficiently strong connection between the injury and the employment.
Case Law
[83]
Hall P. observed in Thiess31 that the expression “in the course of employment” has a long and tortured history. In
a short review of the authorities an appropriate starting point is the decision of Dixon J in Henderson v
Commissioner of Railways32 in which he propounded a test to explain the concept of personal injury arising in
the course of employment, but not arising during the performance of actual work. The test formulated by Dixon
J was that whether an injury occurs in the course of employment ultimately depended on whether the worker was
doing something which he or she was "reasonably required, expected or authorised to do in order to carry out his
actual duties".
[84]
The test in Henderson33 was restated by Dixon J in Humphrey Earl Ltd v Speechley34 but in a modified form to
the extent that the words "to carry out his actual duties" were changed to "to carry out his duties". The test was
expressed in the following terms:
"The acts of a workman which form part of his service to his employer are done, needless to say, in the
course of his employment. The service is not confined to the actual performance of the work which the
workman is employed to do. Whatever is incidental to the performance of the work is covered by the course
of the employment. When an accident occurs in intervals between work the question whether it occurs in the
course of the employment must depend upon the answer to the question whether the workman was doing
something which he was reasonably required, expected or authorised to do in order to carry out his duties.".
[85]
In Hatzimanolis35, the High Court reviewed earlier tests and observed that:
"…Australian Courts have almost invariably applied the test formulated by Dixon J. in Henderson when
called upon to determine whether an injury occurring during intervals between work was sustained 'in the
course of employment'. On the whole, the flexible application of the test has enabled a satisfactory line of
demarcation to be drawn between those injuries which are work-related and those which are so remote from
the notion of the worker's employment as not to call for compensation by the employer.".
However, having made these observations, the High Court focussed on the difficulty in modern cases in
justifying the connection between the injury and the carrying out of the workers duties. The Court said:
"Nevertheless, only by use of a strained interpretation of the words 'in order to carry out his duties' is it
possible to reconcile the application of the test with the decisions in many modern cases where workers have
been held to have sustained injury in the course of employment.".
[86]
The High Court then proceeded to reformulate the principles to be applied in determining whether an injury
occurring between periods of actual work is within the course of employment. The test was described in the
following terms:
"Accordingly, it should now be accepted that 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. In determining whether the injury occurred
in the course of employment, regard must always be had to the general nature, terms and circumstances of the
employment and not merely to the circumstances of the particular occasion out of which the injury to the
employee has arisen.".
29
Leighton Contractors Pty Limited v Q-COMP (WC/2011/7) 2011- Decision - <http://www.qirc.qld.gov.au>.
Qantas Airways Ltd v Q-COMP AND Michelle Blanch (C/2009/9) - Decision - <http://www.qirc.qld.gov.au>.
31
Pty Ltd v Q-COMP (C/2010/11) - Decision - <http://www.qirc.qld.gov.au>.
32
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281.
33
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281.
34
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.
35
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
30
14
[87]
Subsequently, the application of the reformulated principles in particular cases caused some difficulty and led
the Courts in a number of instances to carefully enunciate the correct approach to be adopted. Such cases include
Watson v Qantas Airways36 and Comcare v Mather37.
[88]
The NSW Court of Appeal in Watson v Qantas Airways38 explained how the test in Hatzimanolis39was to be
applied:
"….in the first instance, a determination or characterisation of the period or periods of work of the employee
as one overall period or episode of work, or two or more; one does not first, before that task, examine aspects
of, and employer's attitudes to, how the period of work is spent; see Hatzimanolis at 483. Once the period of
work of the employee is characterised, the circumstances of what occurred are to be analysed within that
framework.".
[89]
In Comcare v Mather40, Justice Kiefel addressed the principles in Hatzimanolis41 in the following manner:
"15. The principles established in Hatzimanolis, to guide Courts to a conclusion whether an injury was
occasioned in the course of employment, are in the nature of two enquiries, one concerned with
characterising the periods of work to determine whether the time when the injury was sustained is to be
viewed as an interval occurring in an overall episode or between separate periods of work, and then
determining whether the employee's position or undertaking at the time of injury was something induced or
encouraged by the employer. It may be thought that both enquiries are concerned to establish the connection
or sufficiency of connection between the injury and the employment, which, as their Honours had previously
noted (478) Dixon J in Whittingham thought might be answered by reference to incidence to service.".
Further, at paragraph 21, her Honour stated:
"An injury will, within the statement of principles, have occurred at a 'particular' place if it can be found to
fall within the ambit of the employer's encouragement or inducement which may, in its terms, leave some
matters to the decision of the employee.".
[90]
Whether the Hatzimanolis42 principles were relevant to a limited category of cases or should be applied more
broadly has also been a matter for discussion by the courts. The range of views is reflected in observations made
in certain decisions of Hall P., in the minority decision of Gaegler J in Comcare v PVYW43, and by the NSW
Supreme Court in Van Haeften v Caltex Oil (Australia)44 .
[91]
In Van Haeften45, the NSW Court of Appeal took a broad view of the test applied in Hatzimanolis.46 In this case
a worker who was employed by Caltex Oil was injured while playing touch football as part of annual event
involving all the oil companies and a number of different Caltex departments. The competition was held on a
field sponsored by Caltex and named "Caltex Field".
[92]
In deciding the matter Priestly JA stated (Clarke JA and Meagher JA concurring):
"Hatzimanolis dealt with particular types of cases which can, for short, be called camp
cases, cases where employees are working in comparatively remote areas where they have
to stay for lengthy periods of time during which, when they are not working at the
specific tasks for which they were employed, they have to stay in the area. The specific
statement of the tests which the High Court formulated, (Hatzimanolis at 483) is directed
to cases of that class.
36
Watson v Qantas Airways Ltd [2009] NSWCA 322 (8 October 2009).
Comcare v Adrian John Mather and Irene Patricia Mitchell [1995] FCA 1216; (1995) 37 ALD 463 (1995) 21 Aar
297 (28 April 1995).
38
Watson v Qantas Airways Ltd [2009] NSWCA 322 (8 October 2009).
39
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
40
Comcare v Adrian John Mather and Irene Patricia Mitchell [1995] FCA 1216; (1995) 37 ALD 463 (1995) 21 Aar
297 (28 April 1995).
41
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
42
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
43
Comcare v PVYW [2013] HCA 41.
44
Van Haeften v Caltex Oil (Australia Pty Ltd (1995) 12 NSWCCR 250.
45
Van Haeften v Caltex Oil (Australia Pty Ltd (1995) 12 NSWCCR 250.
46
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
37
15
…
It seems to me that the overall result of Hatzimanolis is that, as well as giving guidance of a more or less
specific kind to courts concerning cases which fall into the 'camp' category, it indicates that there is a wider
area of case where, although the Henderson Speechley test will often still be appropriate, there will be other
cases where it is no longer fully appropriate because of the course of decision in the vast number of cases
decided since that test was formulated.".
[93]
The decision in Van Haeften47 concluded that "there was a sufficient connection between the game at the Caltex
Field on the Sunday and the worker's employment, to justify the conclusion that he was 'in the course of his
employment' when he was injured.".
[94]
In Shirley Joy Cooper48, Hall P endorsed the broader application of the Hatzimanolis49 principles:
"On its material facts, Hatzimanolis v ANI Corporation Ltd was a case dealing with workers engaged to
perform work in remote areas for lengthy periods of time who, of necessity, reside in purpose-built local
accommodation when not performing the tasks for which they are employed. However, as cases such as Van
Haefton v Caltex Oil (Australia) Pty Ltd demonstrate, Hatzimanolis v ANI Corporation Ltd op. cit. also
indicates that it is appropriate to depart from the approach in Humphrey Earl Ltd v Speechley and Henderson
v The Commissioner of Railways, where a course of authority warrants such a departure.".
[95]
However in Kennerley50, Hall P decided the matter by reference to Speechley:
"Humphrey Earl Ltd v Speechley, op. cit,. was criticised in Hatzimanolis v ANI Corporation Limited.
However, in this case, Qantas did not merely encourage and authorise Mr Kennerley to utilise his annual
leave to renew his US Visa, Qantas required and facilitated the exercise. If one looks at 'the general nature,
terms and circumstances of the employment', Hatzimanolis v ANI Corporation Limited, ibid, at 484 per
Mason CJ, Deane, Dawson and McHugh JJ, the conclusion that the injury occurred in the course of Mr
Kennerley's employment is quite unexceptional.".
[96]
Justice Gageler in his minority judgment in Comcare v PVYW51 took the view that the Hatzimanolis52 principles
were limited in their application, were dealing with a particular category of case, and that the reformulated
principles were not necessarily applicable to all cases in which determinations have to be made about the course
of employment:
"It is also critical to recognise that the reformulation postulates no more than a test of sufficiency applicable
to a limited category of case. There will inevitably be cases the facts of which do not fit squarely within the
Hatzimanolis analytical framework and in which further analysis will therefore be required. That does not
detract from the appropriateness of, and, for so long as they stand, necessity for applying, the Hatzimanolis
principles as a test of sufficiency in those many cases the facts of which do fit squarely within the
Hatzimanolis analytical framework.".
[97]
In this matter the specific application of the Hatzimanolis53 principles was always going to be problematic
because the injury to Knauer did not occur in an interval or interlude between an episode of work or an overall
period of work. However the test enunciated in Comcare v PVYW54 meant that determinations of this nature were
not required to be made with the organising principles of Hatzimanolis55 replaced by a determination about
whether “the employee suffered an injury, but not whilst engaged in actual work.”
[98]
The starting point in the review of the High Court decision in Comcare v PVYW56 is a consideration of the
decision of the Full Court of the Federal Court taken on appeal. In that matter the Appellant had prosecuted an
argument that:
"In order to satisfy the tests in Hatzimanolis an injured employee who claims to have been injured during an
interval or interlude between periods of actual work must show both that the injury occurred at a place he or
47
Van Haeften v Caltex Oil (Australia Pty Ltd (1995) 12 NSWCCR 250.
Shirley Joy Cooper v Q-COMP (C/2010/38) - Decision - <http://www.qirc.qld.gov.au>.
49
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
50
John Kennerley v Q-COMP and Qantas Airways Ltd (C/2012/18) - Decision - <http://www.qirc.qld.gov.au>.
51
Comcare v PVYW [2013] HCA 41.
52
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
53
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
54
Comcare v PVYW [2013] HCA 41
55
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
56
Comcare v PVYW [2013] HCA 41.
48
16
she was induced or encouraged by the employer to be and that the activity from which the injury arose was
induced or encouraged by the employer, or was implicitly accepted. Demonstration of those two (or
combined) conditions are necessary, on this thesis, to show that the injury occurred ‘in the course of
employment.".
[99]
The Full Court of the Federal Court rejected the Appellant's submissions for particular reasons including that
acceptance of the submission would require the Court to treat the conditions stated in Hatzimanolis57 ("at a
particular place or in a particular way") as through they were conjunctive rather than disjunctive. The decision
said:
"It appears to us that the burden of the analysis in Hatzimanolis is that, provided one of the qualifying
conditions is met, it falls to an employer to show that an employee's conduct is such as to take it outside the
course of employment for the reason that it should be regarded nevertheless as gross misconduct."
Further the Full Court concluded:
"In our view there is no combined or two-stage test arising from Hatzimanolis. There is a single test which
may be satisfied in either one of two ways, as the primary judge correctly appreciated.".
[100] In identifying the error in the Federal Court decision, the High Court stated at paragraph 39 of its decision:
"It follows that where an activity was engaged in at the time of the injury, the relevant question is not
whether the employer induced or encouraged the employee to be at a place. An employer's inducement or
encouragement to be present at a place is not relevant in such a case.".
[101] The decision of the High Court in Comcare v PVYW58 has brought about two significant changes to pre-existing
reasoning. Firstly, the decision modified and simplified the Hatzimanolis59 principles. Secondly, while the
accepted view was that the Hatzimanolis 60principles applied to a particular category of case and may not have
relevance in all cases, the principles developed in Comcare v PVYW61 have a much broader application.
[102] In modifying the Hatzimanolis62 principles that High Court shifted the focus to a categorisation of the injury by
reference to either “place” or “activity”. Once this determination has been made the question to be answered is,
when an activity was engaged in at the time of injury, whether the employer induced or encouraged the
employee to engage in the particular activity; and when the injury occurs by reference to place, whether the
employer induced or encouraged the employee to be at that place. The High Court's reasoning in this regard is to
be found at paragraph 38 of its decision:
"The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was
suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst
engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in
Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when
the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the
injury will have occurred at and by reference to the place. More commonly, it will have occurred while the
employee was engaged in an activity. It is only if and when one of those circumstances is present that the
question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the
time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?
When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the
employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred
in the course of employment.".
[103] The High Court decision also concluded that the source of the employer's liability in the circumstances discussed
in Hatzimanolis63 arises from the employer's inducement or encouragement of an employee to be present at a
particular place or to engaged in a particular activity: The passages of the judgment at paragraph 34 refer:
It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an
employer's liability for compensation. Hatzimanolis sought to provide a legal justification for an injury,
which occurred between periods of actual work, being regarded as occurring in the course of the employee's
57
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
Comcare v PVYW [2013] HCA 41.
59
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
60
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
61
Comcare v PVYW [2013] HCA 41.
62
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
63
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
58
17
employment. It did so by characterising the interval by reference to the employer's inducement or
encouragement. The employer's liability in such circumstances depends upon what the employer induced or
encouraged the employee to do. Hatzimanolis did not seek to extend the employer's liability beyond that.
"Because the employer's inducement or encouragement of an employee, to be present at a particular place or
to engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the
injury must correspond with what the employer induced or encouraged the employee to do. It is to be
inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of
employment, the employee must be doing the very thing that the employer encouraged the employee to do,
when the injury occurs.
Moreover, it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury,
the circumstances in which it occurred and the employment itself. It achieves that connection by the fact of
the employer's inducement or encouragement. Thus, where the circumstances of the injury involve the
employee engaging in an activity, the question will be whether the employer induced or encouraged the
employee to do so.".
[104] In applying the Comcare v PVYW64 principles to the case before me, the first enquiry to be made is whether the
injury is to be categorised by reference to place or by reference to activity. On the facts of this case, Knauer's
injury was sustained by reference to place not to activity. In the circumstances of this case I do not accept that
the act of sleeping could be said to constitute an activity as contemplated in Comcare v PVYW65. In the course of
its reasoning the High Court dealt in some detail with the line of authority relevant to determinations where the
circumstances of the injury are referable to a place. The principal authority considered was that of Danvers66
where a railway worker died when a van, provided by his employer for his accommodation, caught fire during
the night. The van was moved from work site to work site. On the day of his death, the worker had finished
work at about 4.00 p.m. and had no further duties to perform until the following morning.
[105] In respect to Danvers67, the Court said at paragraph 16 that "reference to the circumstances in Danvers v
Commissioner for Railways (NSW) is essential to an understanding of what is involved in an injury which
'occurred at that place'.". At paragraphs 40 and 41 of the judgement this reasoning was developed further:
"An injury occurs at a place when the circumstance of the injury is referable to the place. The circumstances
of Danvers, which was the basis of this criterion of liability, make this plain. They explain why the mere
presence of an employee at a place in circumstances where an injury is associated with that place may be
sufficient to bring that injury within the course of the employee's employment.
Most commonly, as the cases show, an employee will suffer an injury in the course of employment whilst
engaged in an activity. It was because of the decision in Danvers that the Hatzimanolis principle was said to
apply to a circumstance where injury occurred at a place where the employer induced or encouraged the
employee to be. The circumstances of that case could not be explained by reference to activity, not least
because the evidence did not permit a finding about what the employee was doing when the fire which killed
him broke out.".
[106] Based on the principles formulated in Comcare v PYCW68 the enquiries to be made in the determination of
whether Knauer's injury was sustained in the course of employment are as follows:
•
•
•
•
•
•
Did Knauer suffer an injury outside her period of actual work?
What was Knauer doing when she was injured?
Was Knauer engaged in an activity or present at a place when the injury occurred?
How was the injury brought about?
If an activity was engaged in at the time of injury - did the employer induce or encourage the
employee to engage in that activity?
If the injury occurs at and by reference to a place - did the employer induce or encourage the
employee to be there?
Further, these enquiries are to be made and answered in the context of the general nature, terms, and
circumstances of employment.
64
Comcare v PVYW [2013] HCA 41.
Comcare v PVYW [2013] HCA 41.
66
Danvers v. Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529
67
Danvers v. Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529
68
Comcare v PVYW [2013] HCA 41.
65
18
Medical Evidence
[107] The Appellant conceded that Knauer suffered a personal injury but did not concede that the injury arose out of or
in the course of employment or that the employment was a significant contributing factor. It was not in dispute
that Knauer suffered a psychiatric or psychological disorder, which had been diagnosed as a post-traumatic stress
disorder and a secondary major depression.
[108] Evidence was given on behalf of the second respondents by Dr Markou and Dr Mungomery (both psychiatrists).
Dr Markou was not required for cross-examination. Dr Markou had prepared two reports at the request of
WorkCover. The first was dated 5 September 2011 and is in the evidence as Exhibit 3, and the second report is
dated 11 January 2012 and is in the evidence as Exhibit 4. The first report dated 5 September 2011 includes a
diagnosis of post-traumatic stress disorder. The second report provided an update on Knauer's progress. Neither
report involved a medico-legal assessment.
[109] Medical records of GPCare Medical Centre were admitted into the evidence as Exhibit 2 on the basis that the
records were admitted for reasons other than the truth of the content.
[110] Dr. Mungomery prepared three reports in respect of Knauer dated 17 August 2011, 3 April 2012 and 4
December 2012. These reports are in the Evidence as Exhibit 6. The Commission was not required to consider,
and Dr Mungomery was not asked to give evidence about, some parts of his first and third reports. These matters
are set out in the record of proceedings on Day 1 at pages 58 and 59.
[111] In cross examination of Dr Mungomery, counsel for the Appellant drew attention to pre-existing psychiatric or
psychological conditions that were suffered or may have been suffered by Knauer. Dr Mungomery agreed that
Knauer did not disclose a number of previous conditions when she was interviewed by him. The crossexamination was directed at matters of credit.
[112] While Knauer appeared to provide an incomplete history to both Dr Markou and Dr Mongomery, and while she
had experienced a range of stressors over time, the evidence did not support a finding that Knauer's injury was
not attributable to the events of 1 December 2010. The medical reports clearly established that Knauer suffered a
psychiatric injury as a consequence of the assault on 1 December 2010.
[113] Dr Mungomery's reports dated 17 August 2011 and 3 April 2012 were prepared at the request of WorkCover.
The report dated 4 December 2012 was prepared at the request of Knauer's solicitors. On page 13 of his report
dated 17 August 2011, Dr Mungomery stated inter alia that “The major significant factor leading to the
development of her current psychiatric condition is the alleged sexual assault of 1 December 2010 and associated
sense of horror and helplessness during the assault and fear for her life at the time.”
[114] The direct causal connection between Knauer's assault and the development of a post traumatic stress disorder is
not in doubt.
Findings of Fact
[115] The significant conflict in the evidence, and the determinations required to be made, went to the following
matters:
(i)
(ii)
(iii)
(iv)
(v)
How the decisions taken in respect to Knauer's transfer to the Felix, and Knauer's shared
occupancy of Barton's apartment, were arrived at and communicated to Knauer;
Whether it was intended that Knauer be trained in caretaking duties during her stay at the
Lexicon;
Whether Knauer was encouraged and induced to transfer to the Felix in Brisbane;
Whether, or to what extent, Oaks controlled the entire transfer process including the shared
occupancy arrangement in Barton's apartment;
Whether Knauer's shared occupation of the Lexicon apartment was a result of a private
agreement or was it a result of interventions or facilitations by Oaks which amounted to
encouragement and inducement.
Decision Making
[116] The finding to be made in this instance goes to whether, in terms of accommodation at the Lexicon, Knauer was
presented with a fait accompli by Oaks. The disagreement about the basic facts extended to how the proposal to
share the accommodation was first raised and communicated. The dispute over timing is relevant to Knauer's
claim that she was in effect instructed in a call from Somerville that she was to be transferred to the Felix and
that she would be accommodated free of charge by Oaks in Barton's apartment in the Lexicon. Knauer said that
this was the first that she had heard about the matter and that it was after Somerville's call that she sought a
19
meeting with Pointon to enable her to discuss some concerns she had with the transfer to the Felix. The effect of
Knauer's evidence appeared to be that without prior warning or discussion she received a call from Somerville
with instructions about a transfer to the Felix and accommodation with Barton at the Lexicon
[117] It was Pointon's evidence however that the possibility of sharing accommodation with Barton arose during a
meeting that he had initiated with Knauer to inform her that the transfer to Townsville would not proceed and to
discuss the transfer to the Felix. He said that the possibility arose as part of a problem solving discussion
directed at dealing with concerns Knauer had raised with the transfer to the Felix.
[118] In my view the evidence supports a finding that Pointon's discussion with Knauer preceded the call made from
Somerville to Knauer. There is no dispute that the initial intention was for Knauer to be transferred to
Townsville following the completion of her training at the Seaforth. When this arrangement did not eventuate
Knauer needed to be informed of this outcome and also informed where she was to be placed. It was Pointon's
evidence that these matters needed to be discussed with Knauer and that a meeting was convened in late October
or early November for this purpose. It was the effect of the Oaks evidence that following the meeting Pointon
phoned Barton and got his agreement to progress the shared accommodation proposal. He then said he phoned
Knauer and informed her that he had spoken to Barton and that it was now a matter for her and Barton to
progress the matter if there was a mutual agreement to so proceed. Following this Pointon shifted the matter into
the normal Human Resource channels and advised Chesswas of what had transpired and asked that the matter be
progressed. Subsequently Chesswas passed on particular instructions to Somerville who then communicated
with Knauer and Barton.
[119] Somerville's evidence about the content of the call to Knauer did not support Knauer's version. Somerville said
that when she made the call she told Knauer that she was calling about the GSA role in Brisbane and the
possibility of accommodation at the Lexicon with Barton. In respect to the accommodation, Somerville said that
she told Knauer that she would have the opportunity to meet with Barton and that it would be a matter for her
and Barton to decide if they were comfortable with the shared accommodation proposal. The notion that the
accommodation proposal was conditional on mutual agreement is also supported by the contemporaneous postal
note comment which is in the evidence as Exhibit 13.
[120] The evidence does not support a finding that Knauer was directed by Oaks that she was to be accommodated at
the Lexicon in Barton's apartment. Nor does the evidence support a finding that had Knauer elected to live
elsewhere than in the Lexicon, Oaks would not have supported such an outcome.
Caretaking Duties
[121] The dispute here is about the scope of the role that Knauer was to fulfil following her transfer. It was Knauer's
view that while her primary role would be that of a GSA at the Felix, she would also be given an opportunity to
learn the caretaker role and that this, in part, might be a natural consequence of her shared residency with Barton,
the caretaker of the Oaks Lexicon. Pointon's evidence was however that training Knauer in caretaking was never
contemplated by Oaks nor canvassed with Knauer. It was the Appellant's submission that Knauer was not
required by her employer to undertake caretaking duties, nor was such a requirement a condition of her transfer.
[122] In resolving the conflict in the evidence around whether Knauer was to be trained in caretaking duties I prefer
the evidence of the Appellant's witnesses over the evidence of Knauer. The Oaks evidence was consistent in its
assertion that Knauer was never told that she would trained to undertake caretaking duties during the course of
her stay in Barton's apartment at the Lexicon. Apart from Knauer's evidence, the only evidence of such an
intention arose from a reading of a note prepared by Barton and which is in the evidence as Exhibit 7. This
evidence disclosed that Barton recommended that Knauer be trained to assist him in the discharge of caretaking
functions. The note was written and despatched to Anderson around 11am on 30 November 2010. It was later
the same day that Knauer moved into Barton's apartment. It was Anderson's evidence that he did not respond to
Barton's email on 30 November 2010. Hence at the time that Knauer arrived at the Lexicon, Barton's
recommendation had neither been accepted nor rejected by Anderson.
[123] While Barton canvassed the possibility of Knauer performing caretaking work with Green, Green was
unequivocal in her response that this would not occur. Nevertheless it is conceivable that Barton may have told
Knauer of his views when she checked into his unit later that day or he may have mentioned caretaking during
an earlier discussion with Knauer. As such her evidence about the possibility of undertaking caretaking work
may have derived from such an exchange. However this possibility was not put to Knauer and no finding can be
made in respect of it. Knauer's evidence was that it was Pointon who told her she would trained in caretaking
duties.
[124] The fact that Barton suggested that Knauer might be deployed into caretaking functions on 30 November 2010 is
not consistent with Knauer's account that this direction or intention had been communicated to her by Pointon in
late October or early November 2010 when he met with Knauer to discuss her transfer from the Seaforth. If
20
Pointon had told Knauer in the meeting in late October or early November that Barton would train her up as a
caretaker, it was likely that he would have mentioned this to Barton when he called him after the meeting with
Knauer. If such were the case there would not appear to be any reason for Barton to introduce the idea for
discussion with Anderson in the form of a "suggestion" in his handwritten note on 30 November 2010.
[125] The other reservation that I hold in respect to the prospect that Knauer would be trained as a caretaker is that it is
accepted on the evidence that she would only share Barton's apartment on a temporary basis or as Pointon put it
"until she got on her feet". Knauer at this point in her employment with Oaks had only just completed her three
month probationary period and was regarded as an inexperienced GSA. The focus correctly appeared to be on
Knauer mastering the GSA role in a new working environment at the Felix. I accept Pointon's evidence that he
would need to be very conscious of the implication of making Knauer responsible for the physical and human
assets of the Lexicon. Also the utility of training Knauer in caretaking roles, if it were intended that she remain
at the Lexicon for only a short period of time, may be questioned.
[126] Finally some reliance was placed by the respondents on evidence that two GSA's at the Seaforth had been trained
to complete caretaking duties and had performed caretaking shifts. However the GSA's in question were
experienced employees and in my view Knauer's circumstances are distinguishable.
Encouragement and Inducement to Transfer to the Felix
[127] This matter in itself is not in contention. What is in contention is whether the direction, encouragement or
inducement to transfer extended to and included the decision making process relating to Knauer's shared
residency of Barton's unit in the Lexicon. The respondents tended to view these matters as inseparable and not
as two discrete concepts requiring separate findings. In my view the concepts must be viewed separately. The
first going to level of encouragement or inducement, if any, attaching to the transfer decision, and the second
relating to the level of encouragement or inducement associated with the accommodation decision.
[128] There is no controversy about the finding to be made in respect to the transfer decision which is resolved by the
undisputed facts that Oaks had made the decision to transfer Knauer to the Felix in Brisbane and that from their
perspective there was no other option for Knauer. The only choice that Knauer had was to accept the transfer or
end her employment with Oaks. Consequently Knauer was not encouraged or inducted to transfer to the Felix,
she was directed to transfer. Notwithstanding this, Oaks clearly encouraged Knauer to view the transfer
positively and did actively try to persuade her to accept the transfer.
[129] Another relevant factor in the transfer process was that despite Knauer's preference to stay at the Seaforth she
knew that she was always going to be transferred out of the Seaforth following the completion of her training.
When she joined Oaks she was told that her attendance at the Seaforth was only for the purpose of completing
her training and that there was no ongoing opportunity at the Seaforth. The understanding was that Knauer
would be transferred to Townsville on completion of her training. It should have been no surprise to Knauer
therefore that when the Townsville job did not eventuate she would be transferred to some other Oaks property.
Oaks Control of the Transfer Process
[130] It is clear that Oaks controlled the decision making relevant to Knauer's transfer from the Oaks Seaforth to the
Oaks Felix. This is consistent with Knauer's initial letter of appointment which stated that she "will initially be
based at the Oaks Seaforth Resort and may be required to work at other locations from time to time" (Exhibit 5).
It is also consistent with the arrangement entered into between Pointon and Knauer in the first instance which
made it clear that following the completion of her training at the Oaks Seaforth, Knauer would be transferred to
Townsville. Finally it is not in dispute that Oaks directed Knauer to transfer and that there was no other option
for Knauer, but to transfer to the Oaks Felix. The same level of control however was not exerted in respect to
the processes or decision making that ultimately led to Knauer sharing Barton's apartment at the Lexicon.
[131] The degree of control that Oaks exercised over the accommodation arrangements is to be determined on the
evidence and the conclusions to be drawn from the evidence. At one end of the spectrum it could be suggested
that the evidence supports a finding to the effect that Oaks controlled the entire process and that Barton and
Knauer were directed by Oaks to implement the shared accommodation proposal. At the other end of the
spectrum it might be said that Oaks was a mere bystander to a series of private meetings or arrangements entered
into between Barton and Knauer for the purpose of establishing whether Knauer should share accommodation
with Barton. The fact that Knauer held special project status is a consideration. This meant that Pointon was
intervening in arrangements to an unusual extent. When the CEO of a company personally intervenes and makes
suggestions or requests, it would not be uncommon for such requests or suggestions to be interpreted as
instructions. This in turn has a bearing on the freedom of choice open to Barton when Pointon asked him to
consider sharing his apartment with Knauer.
21
[132] I don't accept that the evidence supports a finding that Oaks directed both Barton and Knauer to enter into a
shared accommodation arrangement. The evidence of Pointon, Chesswas, and Somerville was consistent in
asserting that the shared accommodation proposal was conditional on mutual consent. Knauer's evidence in part
also supported such a finding. Knauer acknowledged that she needed to discuss the accommodation proposal
with Barton and she agreed that she did not finally make up her mind to share the apartment with Barton until
she had met with Barton on either November 27 or 28, 2010.
[133] It follows that while Oaks influenced and facilitated the accommodation arrangement it did not control the
arrangement. Nor does the evidence support a conclusion that it was a preference of Oaks that Knauer stay with
Barton. The correct view on the evidence is that the idea that Knauer might be able stay with Barton arose from
a discussion where Knauer was raising obstacles to her transfer to Brisbane and Pointon, who knew there was no
other option, was looking for compromises or suggestions which might resolve the doubts about the transfer that
Knauer held. In my view it can be inferred from the evidence that Oaks would have been pleased had Knauer
been able to make her own accommodation arrangements. It is the nature and extent of facilitation and influence
exercised by Oaks that requires further consideration.
Encouragement or Inducement to Stay in the Lexicon Apartment
[134] I accept that Knauer was not required nor directed to stay in the apartment, nor was it a condition of Knauer's
transfer that she stay in the Lexicon apartment. I also accept that the Lexicon apartment should be regarded as
Barton's private residence and should not characterised as something other than this, such as some form of Oaks
multi-purpose facility or staff quarters. The evidence in this regard established that Barton's right to occupy the
apartment arose from an oral agreement between him and Pointon. The essence of the agreement was that
Barton was given use of the apartment in exchange for the performance of caretaking services at the Lexicon. In
the context of this agreement I don't think that there was anything unusual about the fact that Oaks owned the
apartment or that Barton's occupancy of the apartment was conditional on his on-going delivery of caretaking
services. For all practical purposes the apartment was Barton's home or his private residence.
[135] Under normal arrangements applicable to GSA's, Knauer would have made her own arrangements for
accommodation in Brisbane following her transfer from Maroochydore. The emergence of the Oaks facilitated
accommodation option arose from Knauer's special project status and Pointon's direct involvement in Knauer's
employment relationship with Oaks.
[136] While Pointon initiated and facilitated the prospect of shared accommodation, he did so without instructing
either Knauer or Barton to accept the proposal. Barton had a choice whether to allow Knauer share his apartment
and Knauer had a choice as to whether she took up the Barton option, whether she tried to make her own
accommodation arrangements, or whether she rejected the transfer and ended her employment with Oaks.
[137] The evidence of Pointon, Chesswas and Somerville was consistent in articulating a view that some mutual
agreement had to precede Knauer's occupancy of the apartment. The post-it note written by Chesswas (Exhibit
13) provides contemporaneous support for this conclusion, as does Knauer's evidence when she agreed that she
only decided to stay in the apartment after she had met Barton and inspected the apartment on either 27 or 28
November 2010. Further support for the mutual agreement finding is provided by Exhibit 7 where Barton sets
out his "Rules for Natasha's Residence". The fact that Barton set conditions for Knauer's residence is not
consistent with an outcome where Barton had been directed to allow Knauer to share his apartment.
[138] The question for determination is whether the evidence supports a finding that Knauer was encouraged or
induced by Oaks to stay in the apartment in the Lexicon. I am satisfied that Oaks facilitated the accommodation
arrangement; positively promoted the arrangement with Knauer; encouraged Knauer to consider the
arrangement; and in attesting to Barton's character endorsed the practicability or suitability of the arrangement.
These considerations indicate that Oaks encouraged Knauer to accept the offer of accommodation in Barton's
apartment.
[139] There are other factors that bear on the issue. The accommodation at the Lexicon was provided to Knauer free
of charge. The inference was therefore that Barton could not charge Knauer rent. Also Oaks directed Knauer
that she could not receive visitors in the apartment. Pointon's personal interest in Knauer's welfare contributed to
a result wherein Pointon wanted Knauer to accept the transfer to the Felix and led him to making offers designed
to assist Knauer and facilitate her relocation from the Sunshine Coast to Brisbane. A conclusion that Pointon's
offer of free accommodation at the Lexicon (albeit in Barton's apartment) was intended to ensure that Knauer
accepted the transfer and commenced work as a GSA at the Felix is inescapable.
[140] I conclude that Knauer was encouraged to stay in the Lexicon apartment and that her temporary accommodation
in the apartment was arranged or offered to facilitate her transfer to Brisbane and the commencement of her
employment at the Oaks Felix as a GSA. In short, Oaks created the opportunity and facilitated Knauer's
occupation of the apartment.
22
Decision
[141] The core of the Appellant's case was to the effect that the arrangement between Knauer and Barton was a private
residential arrangement and that Knauer was not required by the Appellant to reside in the apartment. Knauer's
temporary residence in the apartment was not a term or condition of her employment as a GSA at the Oaks Felix,
and it wasn't something that was encouraged or induced by her employer. Further, Knauer was not required by
Oaks and was not directed by Oaks to reside at the Lexicon as part of her taking up duties at the Felix on 1
December 2010. These submissions are put in support of a contention that the requisite connection between
Knauer's injury and her employment does not exist.
[142] On the other hand the respondents pointed to a number of factors which they said demonstrated the requisite
connection. These factors included:
•
•
•
•
•
•
•
•
Oaks introduced the opportunity with Knauer and encouraged her to consider the option
Oaks facilitated the accommodation arrangement and encouraged Barton to consent to the arrangement
Oaks mandated that Knauer would not pay rent for her use of the apartment
The arrangement was a temporary arrangement intended to assist Knauer's relocation from the
Sunshine Coast to Brisbane for the purpose of her commencing work at the Oaks Felix
Oaks owned the apartment
Oaks authorised Knauer's occupancy of the apartment
Oaks imposed a condition on the Knauer's residence to the effect that she was not allowed to bring
visitors into the apartment (although the condition was imposed to satisfy Barton)
Ultimately it was the offer of free accommodation that encouraged or induced Knauer to accept the
position at the Oaks Felix.
[143] The respondents relied in part on the line of authority derived from series of cases categorised by the Federal
Court when it decided Comcare v PVYW69, as cases "where being in necessary overnight accommodation
pursuant to a requirement to go to a particular town sufficed to provide the relevant nexus between injuries and
the course of employment". These cases include Comcare v McCallum70, Kennedy71, Inverell Shire Council v
Lewis72, and McCurry v Lamb73.
[144] I consider the facts in this case to be distinguishable from the facts in these cases. In the overnight
accommodation cases the employees were required as a condition of their employment to work at locations
sufficiently far from their home towns to require them to stay overnight at other locations. This was not the case
with Knauer who had been "permanently" transferred from one location to another. At the time of her injury
Knauer was not staying away from her usual place of residence and not staying at a town or city other than her
normal or permanent city of residence. In the context of a permanent transfer, Knauer's home city was Brisbane
and her place of residence (albeit temporary) was the Lexicon apartment.
[145] It is also relevant to observe that the cases mentioned involved decisions which treated the conditions stated in
Hatzimanolis74 ("at a particular place or in a particular way") as through they were disjunctive rather than
conjunctive. Consequently some of these cases may have been decided differently if the High Court decision in
Comcare v PVYW75 had preceded their determination. For example, McCurry v Lamb76 may have been decided
by reference to "activity" and not by reference to "place". In these circumstances the governing enquiry would
have been whether the employer had encouraged or induced the particular activity. In McCurry v Lamb77, the
employee had left his designated sleeping quarters and joined a female employee in separate quarters. He was
sleeping with the female employee when he was shot by a rejected former sexual acquaintance of his female
companion. If this case had been decided by reference to "activity" it is doubtful that the court would have
found that the particular activity undertaken when the injury occurred was induced and encouraged by the
employer.
[146] The facts of this case are also distinguishable from the authorities derived from "camp" cases including
Hatzimanolis78. Knauer's injury did not occur in an interval or interlude occurring in an overall episode of work
69
Comcare v PVYW [2013] HCA 41.
Comcare v McCallum [1994] FCA 975; (1994) 49 FCR 199.
71
Kennedy v Telstra Corporation (1995) 61 FCR 160.
72
Inverell Shire Council v Lewis (1992) 8 NSWCCR 562.
73
McCurry v Lamb (1992) 8 NSWCCR 556
74
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
75
Comcare v PVYW [2013] HCA 41.
76
McCurry v Lamb (1992) 8 NSWCCR 556
77
McCurry v Lamb (1992) 8 NSWCCR 556
78
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
70
23
but in an interval between discrete periods of work. The periods of work having been separated as a consequence
of the decision to permanently transfer Knauer from Maroochydore to Brisbane. Her last day of work at the
Oaks Seaforth Maroochydore, and the end of the first period of work, was 24 November 2010. Between 25
November and 30 November 2010 Knauer was not rostered for work and was either on rostered days off or leave
of some form. She travelled to Brisbane on 30 November 2010 for the purpose of commencing employment at
the Oaks Felix on 1 December 2010 when the second period of work was scheduled to commence.
[147] In the circumstances, absent the recent High Court decision, the approach to this matter would be guided by the
reasoning of Hall P. in Kennerley79 where he applied the test set out in Speechley80 and also adopted the principle
that "regard must always be had to the general nature, terms and circumstances of the employment 'and not
merely to the circumstances of the particular occasion out of which the injury to the employee has arisen." Thus
the question to be answered in this matter would be whether, at the time the injury was sustained, Knauer was
doing something which she was "reasonably required, expected or authorised to do".
[148] However this matter will be decided consistent with the principles set out in the High Court decision in Comcare
v PVYW81. Applying these principles, and concluding that Knauer's injury occurred at and by reference to
"place", the governing enquiry is did the employer induce or encourage Knauer to be in the Lexicon apartment at
the time the injury was sustained? On the evidence, Knauer was in the Lexicon apartment because Oaks
suggested she stay there and offered her free accommodation if she elected to do so. While the final decision
about the arrangement was conditional on the agreement of both Barton and Knauer, Oaks facilitated the process
and was pro-active in taking steps to bring the proposal to fruition.
[149] The purpose of the facilitation, or the motivating reason for the facilitation was that Oaks had decided that there
was no option but to transfer Knauer from Oaks Seaforth to the Oaks Felix. The offer of free temporary
accommodation acted as an inducement or an attraction which encouraged Knauer to accept a transfer which she
had not sought and which, it was accepted, would require Knauer to relocate from Maroochydore to Brisbane
and change residence. The fact that the accommodation involved shared accommodation in Barton's apartment,
and that the sharing required the completion of certain courtesies to arrive a mutual consent, are in my view
considerations secondary to the core or motivating reason for the offer of accommodation. These considerations
point to the satisfaction of the test of sufficiency of the connection between Knauer's injury and her employment.
[150] The Appellant submitted that the Lexicon apartment should be regarded as Barton's private residence and that
the employer's role should not be characterised as involving anything more than putting Knauer in contact with
someone who may be prepared to share his apartment. If the assault on Knauer had occurred in a house located
in the suburbs that Barton owned or rented, then Knauer's injury could not be said to arise out of or in the course
of her employment within the meaning of section 32(1) of the Act. For Knauer, nothing of significance should
attach to the fact that she was sharing an apartment with another person who was also employed or engaged by
Oaks, and where the apartment was located in a building in respect of which the other person performed
caretaking duties.
[151] While the Appellant's submission is not without merit, there are significant factual differences between the actual
circumstances in which Knauer found herself and the alternative scenario explored. These factual differences
lead to a different result at law. If Oaks had done no more than put Knauer in touch with Barton because they
thought that Barton might be interested in sharing his suburban home, and after taking up residence with Barton,
Knauer sustained an injury in similar circumstances (assaulted by a housemate while sleeping), such an injury
would be unlikely to be found to be in the course of employment. Applying the tests in Comcare v PVYW82, the
first determination to be made would be to decide that the injury occurred by reference to “place”. However
when the key determination was made about inducement and encouragement in the context of the general nature,
terms and circumstances of employment, the following distinguishing facts would be pivotal:
•
•
•
•
•
•
79
Oaks owned the apartment in the Lexicon but not Barton's suburban home;
It was Oaks ownership of the Lexicon unit that allowed it to exert some influence over the use of the
unit. While Pointon's friendship with Barton may have made Barton susceptible to requests from
Pointon, the nature and extent of such influence is changed by the ownership factor;
Oaks would have not been able to mandate that Knauer pay no rent;
Oaks would not have been able to prevent Knauer receiving visitors;
There would have been no reason to limit the duration of Knauer's stay (need not be temporary);
Knauer's continuing stay in Barton's home would have been unrelated to her employment with Oaks;
John Kennerley v Q-COMP and Qantas Airways Ltd (C/2012/18) - Decision - <http://www.qirc.qld.gov.au>.
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.
81
Comcare v PVYW [2013] HCA 41.
82
Comcare v PVYW [2013] HCA 41.
80
24
•
•
Barton's residency of his suburban home would be unrelated to his on his on-going engagement by
Oaks;
No lease, tenancy agreement, or related contract regulated Barton's use of the Lexicon apartment;
[152] In my view this alternative set of facts would be unlikely to establish a sufficient connection between the injury
and Knauer's employment and support a finding that Oaks encouraged or induced Knauer to stay in Barton's
suburban home. Accordingly I do not accept the Appellant's proposition that a finding that Knauer's injury was
in the course of employment based on the facts of this case must give rise to the same finding in the alternative
scenario painted.
[153] The governing enquiry arising from the decision in Comcare v PVYW83 is whether Knauer's employer
encouraged or induced her to be in the place where she sustained her injury. In Comcare v Mather84, Justice
Kiefel discussed the meaning that should be attributed to the words "induced or encouraged":
"22. In my view ‘encouragement' is not to be taken as of narrow meaning and limited to some positive action
and in specific terms which might lead the employee to undertake a particular activity or attend at a particular
place. The two particular cases which their Honours in Hatzimanolis were concerned with in this context,
The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353 and Danvers v. Commissioner for
Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 involved, respectively, an expectation of presence
coupled with a recognised practice and making available facilities for an employee's use. The facts in
Hatzimanolis did not require the Court to discuss in greater detail what was encompassed by the phrase
"induced or encouraged". To be said to have, expressly or impliedly, induced or encouraged an undertaking
or presence at some location could refer to, by way of example only, requirements, suggestions, recognition
of practices, fostering of participation, or providing assistance and may include the exercise of discretion or
choice on the part of the employee. Further attempt at definition would be fruitless. In each case, the
question will be whether the attendance at the place at which or the undertaking in which the employee is
involved when injured in an interval falls within the ambit of statements, acts or conduct made by the
employer and what may be said to logically arise from them. And in each case, importantly, they must be
viewed in the background of the particular employment and the circumstances in which the employer is then
placed.".
[154] On the facts and circumstances of this case I conclude that Oaks encouraged Knauer to stay in Barton's
apartment and facilitated that arrangement. Oaks facilitated that arrangement in order to ensure that Knauer
accepted the transfer to the Oaks Felix. Knauer did not seek the transfer to Brisbane and was reluctant to move
to Brisbane for a range of reasons. The encouragement or inducement to stay in the Lexicon apartment was
motivated by a desire to remove or diminish the barriers to transfer raised by Knauer and to effect the transfer.
A consideration of the general nature, terms, and circumstances of Knauer's employment in conjunction with the
finding of facts lead to a conclusion that Knauer's injury has been sustained with the course of her employment.
Arising out of Employment
[155] Because of the use of the disjunctive "or" in section 32(1) of the Act, for an injury to be compensable it is only
necessary for an employee to establish either that the injury arose out of employment or that it was sustained in
the course of employment. Having concluded that Knauer's injury was sustained in the course of employment it
is not necessary to decide whether the injury arose out of her employment.
Significant Contributing Factor
[156] Section 32(1) of the Act requires that for an injury to be compensable, employment must be a significant
contributing factor to the injury.
[157] The Appellant argued that for the employment to be a significant contributing factor to the injury, the
employment must be important or of consequence. While it accepted that excessive weight should not be given
to the adjective "significant", it was put that the composite phrase "significant contributing factor" and the notion
of contribution itself, suggested some linkage between the employment and the injury. It was submitted that the
evidence does not support a finding that Knauer's employment as a GSA at the Felix was a strong factor to her
injury. Nor is it sustainable to argue that but for Knauer's employment as a GSA at the Felix, she would not have
been injured. It was not a term of Knauer's employment that she reside temporarily with Barton. Her residency
in Barton's apartment was a product of a private arrangement between Knauer and Barton, not a result of
encouragement or inducement on the part of her employer.
83
Comcare v PVYW [2013] HCA 41.
Comcare v Adrian John Mather and Irene Patricia Mitchell [1995] FCA 1216; (1995) 37 ALD 463 (1995) 21 Aar
297 (28 April 1995)
84
25
[158] In relation to the construction to be placed upon the word "significant" the first respondent relied on the decision
of Hall P in Blanch85. It was also argued that the determination in Blanch86 that the employment was a
significant contributing factor was a persuasive precedent in relation to the resolution of the current case given
the prevailing facts. It was put that in the present case Knauer was commencing a period of work and that the
reason for her occupation of the spare room in the caretaker's unit was solely related to her work.
[159] The second respondent relied on the reasoning in Blanch87 and Leighton88 in submitting that there was sufficient
connection between the second respondent's employment and the injury for the employment to be deemed a
significant contributing factor. It was submitted that but for her employment, Knauer would not have been at the
place where the injury was sustained and that the employer encouraged Knauer to accommodate herself in that
place (the caretaker's residence).
[160] In Badawi v Nexon Asia 89 Basten JA observed that a finding that an injury occurred in the course of
employment may be sufficient to establish that employment was a significant contributing factor:
Thus, subject to one qualification, if the conduct out of which the injury arose occurred in the course of
employment and was the effective cause of the injury (there being no pre-existing condition or involvement
of another person) the only conclusion reasonably open is that the employment was a substantial contributing
factor to the injury.
The qualification arises with respect to activities occurring during an interval or interlude within a period of
employment. Such activities may fall within the course of employment, or they may fall outside it. If the
employer has organised a particular activity and has induced or encouraged the worker to spend the interval
in a particular way, the activity will fall within the course of employment, unless there was gross misconduct
taking the employee outside the course of his or her employment. (Stating the matter in these terms does not
indicate the precise boundaries of the qualification, but identifies an activity which falls well within the
principle explained in Hatzimanolis.)".
[161] However in Newberry v Suncorp Metway90 the Court of Appeal determined that the fact that an injury has been
suffered in the course of employment is not sufficient to establish that the employment has been a significant
contributing factor to the injury. The Court's reasoning is disclosed in the following extracts from the judgment:
"[27] It cannot be disputed that, when s 32 of the WCRA speaks of "employment" contributing to the
worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the
employment of the worker by the employer. The legislation is referring to "what the worker in fact does
during the course of employment". The requirement of s 32 of the WCRA that the employment significantly
contribute to the injury is apt to require that the exigencies of the employment must contribute in some
significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of
the person (not the employer) against whom the claim is made.
…
[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.".
[162] The matter for resolution is whether the facts of this case give rise to a set of employment related circumstances
or exigencies of employment which have contributed in a significant way to the occurrence of Knauer’s injury.
In Kennerley91 Hall P arrived at his decision that employment was a significant contributing factor to the injury
by concluding that “it was the nature and terms of his employment together with decisions and initiatives of
Qantas, which caused Mr Kennerley to be riding his motorbike where and when he was injured.”
85
Qantas Airways Ltd v Q-COMP AND Michelle Blanch (C/2009/9) - Decision - <http://www.qirc.qld.gov.au>.
Qantas Airways Ltd v Q-COMP AND Michelle Blanch (C/2009/9) - Decision - <http://www.qirc.qld.gov.au>.
87
Qantas Airways Ltd v Q-COMP AND Michelle Blanch (C/2009/9) - Decision - <http://www.qirc.qld.gov.au>.
88
Leighton Contractors Pty Limited v Q-COMP (WC/2011/7) 2011- Decision – <http://www.qirc.qld.gov.au>.
89
Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd [2009] NSWCA 324.
90
Newberry v Suncorp Metway90 Insurance Ltd [2006] QCA 48
91
John Kennerley v Q-COMP and Qantas Airways Ltd (C/2012/18) - Decision - <http://www.qirc.qld.gov.au>.
86
26
[163] In this case the exigencies of employment derive from the employer’s decision to transfer Knauer to one of its
Brisbane properties. It was a condition of Knauer's employment that she may be subject to transfer. A general
clause to this effect was included in her letter of offer. In more particular terms Knauer knew when Oaks
engaged her that she would be transferred from the Seaforth once her training and probationary period ended.
While it was not the practice of the employer to provide assistance to transferees in the form of temporary
accommodation, an exception was made for Knauer. Knauer was reluctant to relocate to Brisbane and in order to
persuade her to take the step and to facilitate the relocation, her employer offered to provide free temporary
accommodation, and encouraged Knauer to accept the shared arrangement on offer. It is these circumstances,
and the related facts, that lead to a conclusion that there was a sufficient connection between Knauer's
employment and the injury for the employment to be a significant contributing factor.
[164] I dismiss Appeal No. WC/2012/121. I confirm the decision of Q-COMP dated 21 February 2012 and find that
the Appellant's application for workers' compensation, originally lodged on 7 January 2011, is one for
acceptance.
[165] I reserve the question of costs.
[166] I order accordingly.
G.D. BLACK, Industrial Commissioner
Hearing Details:
2013 27 and 28 February
8 April (Transcript issued)
21 June (Appellant's Submissions)
19 July (Respondent's Submissions)
24 July (Second Respondent's Submissions)
9 August (Appellant's Reply)
15 November (Appellant's Supplementary
Submission)
21 November (First and Second Respondents'
Supplementary Submissions)
Released: 18 December 2013
Appearances:
Mr J. Merrell of Counsel, instructed by Aitken Legal, for the
Appellant.
Mr P. O'Neill of Counsel, directly instructed by Simon Blackwood
(Workers' Compensation Regulator), the First Respondent.
Mr R. Reed of Counsel, instructed by Maurice Blackburn
Lawyers, for the Second Respondent.