Reported Decision : (2001) 22 NSWCCR 1 Compensation Court of New South Wales CITATION : Hoskin v Mid Western Area Health [2001] NSWCC 176 PARTIES : John Oliver Hoskin v Mid Western Area Health MATTER NUMBER(S) : 52973 of 1999 JUDGMENT OF: Burke J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23/08/00 DATE OF JUDGMENT: 01/30/2001 FOR APPLICANT: Mr J Young intructed by Turner Freeman LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J W Catsanos instructed by Hickson Wisewoulds JUDGMENT: 1. The applicant seeks awards in respect of lump sums pursuant to ss66 and 67 in respect of a 20% permanent impairment of the back and consequential pain and suffering. 2. The substantial issues are whether the incident out of which the losses derive arose out of or in the course of the employment and whether the employment was a substantial contributing factor to the injury. 3. The applicant was a senior specialist psychiatrist at, and medical superintendent of, the Bloomfield Hospital. The Salaried Senior Medical Practitioners (State) Award in clause 5 makes provision for Training, Education and Study Leave. Prior to the relevant events the applicant had applied for such leave from 14 November 1997 to 12 December 1997 inclusive for the purpose of undertaking a month long programme arranged jointly by the Queensland University and Community Aid Abroad in relation to community health services and conducted in India. 4. Clause 5(a) of the Award provides for the grant of relevant leave where such is relevant to both the senior medical practitioner and the employer. 5. The general activity was conceived as beneficial to both parties and his application was granted. Not only was he paid salary throughout this period but was also funded in respect of travel and accommodation costs in accordance with the Award provisions. 6. In the afternoon of 10 December 1997, the formal course having concluded and the applicant due to take a homeward plane that evening, he visited the Gandhi Memorial in New Delhi. Bare-footed and walking on wet polished granite at the memorial he slipped and fell heavily on his buttocks and thereby suffered injury to his back. 7. The visit to the memorial is categorised by the respondent as a private sight-seeing activity and by the applicant as an incident of the employer funded visit to India. I doubt such are mutually exclusive. 8. In terms of the Humphrey Earl v Speechley test (1951) 84 CLR 126, per Dixon J at 133, of "reasonably required, expected or authorised to do" was this an activity which fell within those parameters? Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 and (1992) 8 NSWCCR 242, Cudgegong Soaring P/L v Harris (1996) 13 NSWCCR 92, WorkCover Authority v Billpatt Holdings P/L (1995) 11 NSWCCR 565, Glenbuddah P/L v Williams (1995) 12 NSWCCR 468 (C/A) and Van Haeften v Caltex Oil (Aust) P/L (1995) 12 NSWCCR 250 (C/A) have all considered aspects of this question of nexus to employment of particular activities and, to a degree, explicated the test in Speechley. 9. Insofar as a particular activity is "authorised" mere permission does not suffice. There must be active encouragement or inducement by the employer. In this matter there appears adequate such encouragement and inducement the employer patently agreeing that the overall activity was of benefit to both the employee and employer and the employer defraying the expenses involved in pursuing the general activity. 10. The respondent has not framed any submission that this accident occurred in an interval between two periods of work. The whole thrust of the respondent's submission is that the applicant was on leave and, ex hypothesi, not working at all during the whole of the visit to India. That is partly true. The applicant was on leave. But it was not annual or recreation leave. It was leave of a particular type conceived as beneficial to a degree to the employer. It was leave for which the employer paid not merely salary but the necessary expenses of implementing it. It clearly arose out of the employment being the fulfillment of a term of the relevant award and the implementation of that activity was in the course of the employment. 11. This, in my view, is a "camping" case on a par with Hatzimanolis and such matters as Qantas Airways Ltd v Kirkland (9 October 1980, Court of Appeal, unreported) and ATL Ltd v Rolls 10 December 1990, Court of Appeal, unreported). It is distinguishable from such matters as McCurry v Lamb (1992) 8 NSWCCR 556 and Inverell Shire Council v Lewis (1992) 8 NSWCCR 562. In those matters the employment had little more influence than to determine that the worker was at the particular site of injury at a particular time. What Dr. Hoskins was doing at the relevant time was a natural incident of the whole employment purpose of the visit to India. The purpose was educative among other things. The applicant was essentially using his last few hours in India before taking the plane for home in a natural follow-up of the main objective of the trip. Even were it otherwise unless he embarked upon some venture inherently hazardous he would enjoy the protection of the Act while acting in a normal fashion relative to the situation in which he then was placed. A worker who is overseas as part of his employment would prima facie enjoy the protection of the Act while engaged in sight-seeing appropriate to the place where he found himself. That is a normal incident of a visit to a foreign country. 12. Even if it be found that the injury arose out of and in the course of the employment it is submitted by the respondent that the employment was not a substantial contributing factor to the injury within the ambit of s9A. Two relevant considerations were adverted to in Cant v Catholic Schools Office (2000) 20 NSWCCR 88 at [28] and [32]. 13. Firstly, it is not the character of the particular event causing injury that determines the relevant employment nexus. Virtually any employment accident could have occurred in a similar manner in a domestic situation. It is the circumstances in which the incident occurs that indicates the degree of nexus to employment factors. It is not required that the particular activity was a necessity because of the employment. It is a incident of the employment if done in circumstances that are a natural use of facilities provided by the employment. The implicit submission of the respondent that since there was no compulsion arising from the employment to visit the Gandhi Memorial the employment cannot be a substantial contributing factor to injury on such a visit unduly narrows the test. 14. Secondly, the degree to which an employment activity was a substantial contributing factor to a particular injury can be indicated by medical assessments as to the causation of the injury. The injury in this matter was a marked aggravation of a degenerative back condition and resulted in a L4/5 protrusion. Both parties have submitted that Dr. Collins correctly assessed the degree of loss and the s68A deduction. He assessed a 20% impairment of the back and a s68A deduction of one third. The fall was responsible for two thirds of the consequent impairment. If it was an "employment" fall then it obviously contributed substantially to the consequential back disability which constituted the injury. 15. The applicant was in New Delhi for a relevant employment related purpose. There, in a short interval between conclusion of the formal course and boarding a plane for home, he engaged in a routine sight-seeing excursion. He sustained injury while doing so. Such an excursion was a normal incident of any visit to New Delhi. Such was a relevant employment activity much as the journey in Hatzimanolis, the meal in Kirkland and in Rolls. The employment was a substantial factor in the overall excursion to India. It was, I would believe, equally a substantial factor in the excursion to the Gandhi Memorial and the consequent fall. The fall was certainly a substantial factor in the consequent injury. 16. I am therefore of the view that the applicant has established injury arising out of and in the course of his employment to which injury the employment was a substantial contributing factor. 17. The evidence accepted by both parties establishes that as a consequence of that event the applicant suffers a 20% permanent impairment of the back and that the deductible proportion in terms of s68A is one third. The applicant is entitled to compensation for the residual 13.33% permanent impairment. The $8,000 so awardable does not pass the threshold of s67(2) so there can be no award in respect of pain and suffering. 18. For those reasons I formally find: 1 On 10 December 1997 the applicant received injury to his back. 2 As a result thereof the applicant suffers a 20% permanent impairment of the back. 3 The deductible proportion in terms of s68A is 33.3%. 19. I hereby order and award that the respondent pay to the applicant: 1 $8,000 in respect of the residual 13.3% permanent impairment of the back. 2 Medical and other expenses of treatment pursuant to s60. 3 Costs. J Young instructed by Turner Freeman appeared for the applicant. JW Catsanos instructed by Hickson Wisewoulds appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.