Application for special leave rejected in Dring v Telstra Corporation Limited

The High Court has denied an application for special leave to appeal the decision of the Full Court of the Federal Court of Australia (Full Federal Court) in Dring v Telstra Corporation Limited, finding that the application by Ms Dring did not raise a question of law with sufficient prospects of success to warrant the grant of special leave.

The High Court application for special leave

Ms Dring sought leave to appeal the decision of the Full Federal Court in which it was unanimously held that being “at a place” at which an employer has encouraged or induced an employee to be during an overnight work trip is not where the enquiry into whether an injury is compensable under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) must end.  Consideration must also be given to the activity being undertaken at the time of the injury and leading up to it to determine whether an employer has “encouraged or induced” an employee to spend their time “at a particular place or in a particular way” during intervals or interludes in overall periods of work.

Facts

Ms Dring, a former employee of Telstra Corporation Limited (Telstra), sustained a left hip injury when she slipped on exiting a bathroom located on the 6th floor foyer of a hotel at which she was staying for an overnight work trip at 2:30 am on 14 April 2016. On the evening of 13 April 2016, Ms Dring had met with a former colleague at her hotel, shared a bottle of wine, left the hotel and went out to dinner where a further bottle of wine was shared. After dinner, they attended a cocktail bar and one other venue following which, they returned to Ms Dring’s hotel shortly before 2:30 am. When Ms Dring and her friend arrived at the 6th floor foyer, Ms Dring found herself in need of a bathroom and used the amenities on that floor and slipped on an allegedly freshly mopped floor.

Telstra denied liability for Ms Dring’s hip injury under s 14 of the SRC Act because Ms Dring was not “in the course of” her employment at the time she sustained the injury, having regard to where she was and when she was injured. Telstra did not consider it had “encouraged or induced” Ms Dring to be out at 2:30 am and to be in the hotel’s foyer bathrooms having regard to the chain of events that led her to be there at that time.

The Full Federal Court held 

The Full Federal Court considered what constitutes an injury “arising out of or in the course of employment” and cited the decisions in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246; and Westrupp v BIS Industries Limited [2015] FCAFC 173, (2015) 238 FCR 354.

Flick J accepted that Ms Dring’s circumstances bore parallels to the circumstances in Hatzimonolis as Ms Dring was required by her employer to be at a particular place for the purposes of attending the workshop. However, he rejected Ms Dring’s contention that if the injury occurred at the place at which the employer had induced or encouraged, it necessarily followed that the injury arose out of, or in the course of, the employee’s employment. Flick J confirmed it is appropriate to look one step further at the circumstances in which the injury occurred, including the activity that was being engaged in at the time of the injury—noting the decisions in Hatzimanolis, PVYW and Westrupp did not support the proposition that the necessary enquiry ended at whether Ms Dring was “at a place” at which her employer had encouraged her to be.

Wigney J agreed with Flick J and found it was not enough for an injury to occur at a place that an employee is required or expected to stay for work. It was also necessary to have regard to the activity the employee was engaged in at the time the injury was suffered in order to determine whether the injury was sufficiently connected to employment. Wigney J considered it relevant that Ms Dring’s injury had occurred at 2:30 am after she had been out socialising with a friend and noted it may have been a different matter if Ms Dring had injured herself in the hotel foyer or the bathroom in her room shortly after having dinner with work colleagues.

Rangiah J agreed with both Wigney J and Flick J.

Sparke Helmore acted for Telstra in this matter. See our previous Alert following the Full Federal Court decision.

What this means

The test as first espoused in Hatzimanolis and clarified in PVYW remains unchanged and the decision of the Full Federal Court in Dring is good law.  In deciding whether an injury can be found to have arisen out of, or in the course of employment in periods that are intervals or interludes in overall periods of work, regard must be had to both the place at which the employee is injured and the activity engaged in by the employee at the time an injury is sustained.