Balderson v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 51

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Balderson v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 051 PARTIES: Balderson, Luke (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2012/490 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 7 March 2014 HEARING DATES: 29 and 30 July 2013 MEMBER: Industrial Commissioner Black ORDERS: Appeal dismissed CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the injury arose out of or in the course of employment -worker injured on quad bike ride with co-workers and employer - association between employment and injury considered - held that injury not sustained within the course of employment CASES: Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(3)(b), s 550 Henderson v Commissioner for Railways [1937] HCA 67 Workers' Compensation and Rehabilitation Act 2003, s 32(1) and (3)(b), s 550 Henderson v Commissioner for Railways [1937] HCA 67 Landers v Dawson [1964] HCA 35 Drummond v. Drummond [1960] VR 462 Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 Comcare v PVYW [2013] HCA 41 Whittingham v. Commissioner of Railways (W.A) [1931] HCA 49. -- 1 of 23 -- 2 Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 . Commonwealth v Oliver [1962] HCA 38. Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd [2009] NSWCA 324. Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Clancy v Department of Public Health (1962) NSWR2 Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 Shirley Joy Cooper and Q-COMP (C/2010/38) Decision - http://www.qirc.qld.gov.au Kavanagh v Commonwealth (960) 03 CLR 547 Newberry v Suncorp Metway Insurance Pty Ltd (2006) QCA 48 APPEARANCES: Mr T. Nielsen, Counsel instructed by Slater & Gordon Lawyers for the Appellant. Mr S. Sapsford, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Introduction [1] Mr Luke Balderson ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the Regulator") to reject his application for workers' compensation. [2] The appellant was employed as a casual concreting labourer by Radjaz Concreting ("the employer"). No work was possible on 24 February 2012 because of inclement weather. In the afternoon Balderson participated in a quad bike ride with his employer and co-workers. During the ride Balderson was thrown from the bike and seriously injured. He was admitted to the Townsville Hospital Emergency Department with multiple injuries, including:  right temporo / parietal fracture;  right scapular blade fracture;  right 3 - 6th rib fracture;  small right pneumothorax;  scalp laceration; and  multiple abrasions on face, shoulder and trunk. [3] The appellant lodged an application for workers' compensation with WorkCover Queensland ("the Insurer") on 18 May 2012, but his claim was subsequently rejected by the Insurer. On 2 October 2012, the appellant applied for a review of the Insurer's decision with the Regulator. On 7 December 2012, the Regulator confirmed the decision of the Insurer that the appellant's claim was one for rejection. The appellant now appeals the Regulator's decision to the Commission pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). -- 2 of 23 -- 3 [4] For the purposes of this appeal, the Regulator concedes that the appellant is a "worker" and has suffered a personal injury. [5] In the first instance, the appellant submitted that the injury occurred in the course of his employment and that his employment was a significant contributing factor in accordance with s. 32 of the Act. In the alternative, the appellant submitted that he was injured during a break in work in accordance with s. 34(1)(c) of the Act. Jurisdictional Documents [6] The jurisdictional documents [Exhibit 1] tendered by the Regulator were as follows:  WorkCover Queensland Application for Compensation dated 18 May 2012;  WorkCover Queensland Reasons for Decision dated 2 July 2012;  Q-COMP Application for Claim Review dated 2 October 2012;  Q-COMP Review Unit Reasons for Decision dated 7 December 2012; and  Notice of Appeal to QIRC dated 21 December 2012. Nature of the Appeal [7] The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that his injury arose out of, or in the course of, his employment if the employment is a significant contributing factor to his injury. Legislation [8] Section 32 of the Act relevantly provides: "32 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." [9] Section 34 of the Act provides: "34 Injury while at or after worker attends place of employment (1) An injury to a worker is taken to arise out of, or in the course of, the worker's employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker's employment - (a) while the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer's trade or business; or -- 3 of 23 -- 4 (b) while the worker is away from the place of employment in the course of the worker's employment; or (c) while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess. (2) For s (1)(c), employment need not be a significant contributing factor to the injury." Evidence [10] During the course of the proceedings, evidence was provided by 5 witnesses. The witnesses for the appellant were as follows:  Luke Balderson (worker);  Coral Lea Balderson (worker's mother); and  Shane Bingham (co-worker). The witnesses for the Regulator were as follows:  Andrzej (Andrew) Kutek (Employer); and  Shaun Gartlan (co-worker). [11] Balderson commenced work as a casual labourer with Radjaz Concreting on Monday 20 February 2012. During his first week of employment he worked for 11 hours on the Monday, 10 hours on the Tuesday, 5 hours on Wednesday with rain curtailing the duration of the shift, and did not work at all on the Thursday because of rain. [12] The performance of work was subject to the vagaries of the weather and it was normal practice that work would not be performed if rain was falling or that conditions were not conducive to concrete pours. The employer's premises were located at 44 Woodfield Road Gumlow, which is a suburb located about 20 minutes drive west of the Townsville CBD. All trucks, tools, equipment and work materials were housed at this location in a very large shed. An office was also located within the shed. It was the practice for employees to report for work at the employer's premises prior to proceeding to the job site. [13] There was some doubt about whether work would be performed on Friday 24 February 2012 but most employees presented for work at or around 6.30am. Balderson presented for work that morning with co-worker Shane Bingham. Both travelled to the employer's premises in Bingham's car. In addition to Balderson and Bingham, the concreting gang comprised the owner of the business, Andrzej Kutek, and other employees viz Shaun Gartlan, Mitchell Newman, and Steve de Brueys. De Brueys was the only employee not to present for work at 6.30am on 24 February 2012. -- 4 of 23 -- 5 [14] Balderson said that when he arrived at work he and Bingham followed their normal routine and commenced a number of preparatory tasks including loading tools and materials on to trucks. His evidence at T1-8 is as follows: "All right. Now what did you do immediately after you arrived at the work site?---Started preparing everything for the day's work. And what did that entail?---To get the – like, the chairs to go inside the slab for the concrete. Make sure there was enough mash. Make sure there was acid – all the acid was loaded on the truck, and – make sure the shovels – make sure everything was fine. Everything we needed everything for that day. Screeds, trowels. Everything was there for the day." [15] However about 6.30am he was advised by Kutek that no work would be performed that day. His evidence is recorded at T1-8: "All right. And why was that?---Because Andrzej just said that – he just said no, we're not going to pour today. After we'd loaded the trucks and that, he come out when the other boys got there. He said we're not going to pour a slab, we're just going to clean her up around my yard today, and get everything tidy. Make sure you got enough materials of everything, and yeah, clean up around there for the day." [16] Balderson said that after Kutek called off the concreting work he then told employees that they should commence cleaning up the shed. The cleaning operation included the clearing of materials from and around the pool table. At about 8.30am, on Balderson's account, he was offered a beer from a fridge located inside the shed. The beer or alcohol supplies diminished and at around 10am Steve de Brueys was sent off to replenish the stock. The drinking and pool playing continued until lunch time when Ms Kutek brought some food into the shed. It was Balderson's evidence that cleaning activities continued concurrent with the drinking and pool playing. After lunch Kutek, Balderson and others set off on a quad bike ride. Kutek was the leading rider and he elected to show the others a quad bike course that he traversed on the Australia Day holiday. The course was not located on Kutek's property but it was accessed from a point not far away from the property. [17] It was Balderson's evidence that it would have been difficult for him not to have participated in the activities of 24 February 2012. Firstly, he maintained that he was at the property performing work as instructed by his employer. Secondly, he did not have his own transport and he could not have left the property unless the arrangement was acceptable to Bingham. Thirdly, he said that as a new employee he felt an obligation to participate in activities and impress his employer with his enthusiasm and willingness to be part of the team. [18] Balderson expressed the view that there was still work to be done after lunch and after the quad bike ride. He said that timber needed to be stacked inside a container and that a mattress, bed frame and a cupboard had to moved out of Kutek's home or living area. [19] Shane Bingham was the head concreter for Radjaz Concreting. He had been employed by Radjaz Concreting for about 2 years before leaving the organisation in -- 5 of 23 -- 6 June 2013. Bingham said that he and Balderson arrived at work on 24 February 2012 at about 6.30am. He said that Shaun Gartlan and Mitch Newman had already arrived. He said that when he arrived at the property, Kutek was in the shed and that Kutek told him and Balderson "...Since you are here, start cleaning out the trucks". Bingham said that Gartlan and Newman also started work on this activity. Bingham said that the truck cleaning took a couple of hours and after that Kutek told him and the others to clean particular areas of the shed and move some material into containers. Bingham said that Kutek also instructed them to clear materials from the shed, move some material into containers, sweep out the shed, re- grease machines, and stack timber. [20] It was Bingham's evidence that the drinking of alcohol commenced at about 8.30am and that work continued while the drinking was underway. Pool was also played during the morning but it was a limited activity and work generally continued until Mrs Kutek provided lunch at around 12 noon. After lunch, work continued until the quad bike expedition commenced. Bingham said that during the morning Kutek was completing work on that week's pay and that he paid employees' for the work they did during that week including money for the clean up work completed on that day. Bingham said that during the morning he drank about six or seven Fourex Gold, while the others were drinking full strength rum and coke. He subsequently varied this statement to indicate that he thought Balderson was drinking beer and that he had one rum and coke. [21] Bingham said that during the course of his employment he had on other occasions completed paid work around the property. He said on these occasions employees would be allowed to drink alcohol while they worked. He conceded that neither Gartlan nor Newman had undertaken any such work but stated that other employees including de Brueys did participate. [22] Kutek said that on the morning of 24 February 2012 he went down to his office in the shed at about 6.15am. While he was there he saw vehicles arriving containing Bingham and Balderson and Gartlan and Newman. He said he told the employees that work had been called off because of the rain. He said no one performed any work on the trucks and that there was no cleaning up of the yard. He said no one was ready for work because they were not wearing boots. It was his evidence that soon thereafter some interest was shown in his pool table and his fridge, but in order to play pool the table had to be cleared of materials that were stored on it. He said that as part of this process some timber flooring that was obstructing access to the playing area was loaded onto a buggy and taken up to his house. He conceded that the floor area around the pool table was also swept. He said that these activities took between 20 and 30 minutes and were completed around 7.00am. From that point on everyone played pool and drank alcohol until his wife arrived with lunch. Kutek said that at some point during the morning de Brueys arrived and participated in the pool playing before travelling to a liquor outlet to replenish the alcohol supply. Kutek said that the pool table had not been used for about a year. [23] Kutek said that the activity of cleaning the yard or cleaning the trucks occurred about once a year. It was Kutek's evidence that no one got paid anything arising from their attendance at work on 24 February 2012. Further he denied Bingham's evidence that he called employees individually into his office for the purpose of handing out their pay or a payment for work done on that day. It was also Kutek's -- 6 of 23 -- 7 evidence that prior to the quad bike ride de Brueys had offered Balderson a ride home. Finally Kutek said that no one was obliged to stay and play pool on 24 February 2012 nor did he direct anyone to stay. [24] Shaun Gartlan said that he was employed by Radjaz Concreting in the capacity of a concrete labourer and that as at 24 February 2012 he had been employed for about 12 months. At the time of the hearing he remained in the employment of Radjaz Concreting. On 24 February 2012 he said that he travelled to work with Mitchell Newman and they arrived at the Kutek property at 6.30am. He said that soon after they arrived Kutek told them that work had been called off because of the wet weather. His evidence of what transpired after this is set out in the transcript at T1-73: "Well, what happened after that?---I'm not too sure on what bloke out of the four or five of us that were working for Andrzej at the time noticed a pool table in the shed, covered in a heap of rubbish. There was like, tyres, and heaps of junk. And we wanted to have a game of pool and whatnot. So we sort of started cleaning up a bit of stuff around the pool table and whatnot, and Shane and myself went to the beer fridge because the day was off. About 7 o'clock or whatever it was, and we grabbed a beer. Started drinking as we were moving rubbish around from the pool table. Had a few games of pool, and we kept drinking, as you do, sort of thing." [25] It was Gartlan's evidence that he had not previously undertaken any work on Kutek's property on a day off or on a day where work was not possible because of rain. He did not recall being called into Kutek's office to be paid on 24 February and said he did not believe that he was paid in respect to his attendance on 24 February, 2012. He said that on the day he was wearing a grey Adidas shirt and not a high-vis shirt that he normally wore at work. He also said that he was wearing a pair of thongs not work boots. Matters in Contention [26] There are a number of matters in contention relating to workplace events on 24 February 2012: (i) There was a dispute over whether it was necessary for anyone to present for work given that the established rule was to the effect that no work would be performed in the event of wet weather; (ii) There was a dispute over whether any work was performed at the employer's premises on 24 February 2012; (iii) If work was performed, there was a dispute over when work finished; (iv) There was a dispute over whether employees were paid any wages arising from their attendance at the employer's premises on 24 February 2012; and (v) There was a dispute over whether Balderson's participation in the quad bike ride was voluntary or whether he was compelled to participate. -- 7 of 23 -- 8 The Appellant's Case [27] The appellant submitted that the appeal was supported by anyone of three propositions:  That the quad bike expedition was a social activity forming part of the work performed on the day in question;  The accident occurred during a break in employment pursuant to s 34(1)(c) of the Act;  The accident occurred soon after the cessation of work but arose out of work. [28] In respect to the latter proposition it was submitted that the significance of events occurring immediately after or before work had been recognized in the decision of Dixon J in Henderson v Commissioner for Railways1 where it was stated: "...Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties." [29] It was submitted that it was open for the Commission to take the view that Balderson's injury occurred shortly after the cessation of work and that this conclusion would mitigate in favour of the grant of the appeal. [30] The appellant submitted that in determining whether Balderson's activities at the time of injury were work related it is necessary to look to the following facts:  The employer had directed employees to attend at his premises at the start of the working day and they did;  The employees went about a range of cleaning duties;  Balderson was a new employee who was trying to impress his boss;  The employer would have been expected to inform employees when work was to cease and when they could go home. He did not;  The employer mixed business with pleasure in paying his employees to clean up while allowing them to drink alcohol during the clean up. There was a muddying of the waters between work and socialising;  It would have been rude for Balderson to refuse the offer of alcohol and to refuse the offer of food for lunch; and 1 Henderson v Commissioner for Railways [1937] HCA 67. -- 8 of 23 -- 9  The employer allowed employees to use the quad bikes and it was the employer himself who led the convoy across a trail known to him. He was in control of the expedition and Balderson being a new employee trying to impress was effectively compelled to participate. [31] Taking these matters into account the appellant submitted that the purpose of the quad bike activity should correctly be considered as a work related social activity or a team building exercise. Consequently the quad bike activity was associated with the business. Further it was an activity that Balderson would have thought that he was obliged to participate in given that Balderson was a new employee subject to the whim of the employer and disposed to try to impress the employer with his enthusiasm for his employment. In the circumstances, the necessary association between the injury and the employment was established by reference to the quad bike activity. [32] Further, it was submitted that it was open to the Commission to conclude that Balderson was directly involved in work activities at the time of the accident, and that the facts are capable of supporting both a finding that Balderson's injury "arose out" of employment as well as a finding that the injury was sustained in the course of employment. Findings Presentation for Work [33] While Kutek maintained that it was not necessary for employees to present for work on the morning of 24 February because inclement conditions ruled out any prospect of work, the fact remains that four out of five concreting gang members attended at the employer's premises at the normal starting time. Their attendance is sufficient to establish that there was at least a reasonable doubt about whether concreting work could be undertaken. Based on this consideration, and the evidence adduced on the topic, I think that it can reasonably be concluded that the four employees who attended at the employer's premises on 24 February 2012 were willing and available for work if required. Did Work Commence? [34] Kutek and Gartlan both said that no paid work was completed on the day. The only "work" undertaken was a series of tasks necessary to be undertaken to enable the playing of pool. These tasks involved clearing and moving objects from the pool table and clearing and cleaning the area around the pool table. It was their evidence that these activities took about 30 minutes and once completed everyone commenced drinking alcohol and playing pool. [35] Bingham and Balderson however said that Kutek instructed them to undertake a broad range of clearing and cleaning activities and that any drinking or pool playing was incidental to their work. It was inferred that the drinking and pool playing should be considered an intermittent distraction to the tasks being performed, or as something that could be conveniently be done concurrent with their assigned work duties. These inferences are illustrated by the assertions of both Bingham and -- 9 of 23 -- 10 Balderson that the pool playing comprised nothing other than "rolling a few balls around the table". Balderson's evidence is recorded at T1-25: "And what was the situation, Mr Balderson, in relation to the playing of pool? Did people play a game and then do a bit of work and then play a game and do a bit of work? What was the situation there?---I think it was just a couple of people hit a few balls around and everybody just kept going. I'm sorry?---They'd just, say, they didn't play a whole game, so game was started, they were still doing stuff, and if they stopped for a second to have a sip of their beer they'd play – they'd have another couple of hits. And then stop the pool game in order that they might go and do some work; is that right?---Yeah." [36] While Bingham said at T1-33: "Now, at some stage during the morning did – did anyone start playing pool on the pool table?---Oh, the boys would, yeah, roll the balls around and that. They had a couple of little games." [37] I do not consider the evidence of Bingham and Balderson to be convincing in this regard. Despite general acknowledgement that pool playing occurred, the attempt to characterise pool playing in terms such as "a couple of people hit a few balls around" or the boys would "roll the balls around" or "they had a couple of little games" appear to me to be contrived expressions advanced for the purpose of diminishing the significance of pool playing in terms of the morning's activities. [38] While I am prepared to entertain the view that the suggested mixing of work and pleasure did prevail for a period of time, I am not prepared to find that this state of affairs could plausibly have applied across the six hour period that commenced following the arrival of employees at 6.30am and ended with the start of the quad bike ride. [39] Given the contradiction in the evidence it is difficult to arrive at a finding in response to the question of whether work was performed on 24 April, 2012. In the end result I resolve the contradiction by determining the matter in conjunction with the question of whether any wages were paid on the day or in respect to work completed on the day. On that issue I have preferred the evidence of Bingham over the evidence of Kutek. In the circumstances, given that I have found that some wages were paid in respect to the attendance by employees at Kutek's place on 24 February 2012, it follows that a finding should be consistently be made that some paid work was undertaken on 24 February 2012 by Balderson, Bingham, Gartlan and Newman. When did Work Finish? [40] There was a similar divergence in the evidence about the intended duration of any work that was being undertaken. Bingham and Balderson advanced a relatively simple perspective to the effect that there was a considerable amount of work that potentially could be done and that there was no specified end to the working day. -- 10 of 23 -- 11 Their evidence was to the effect that Kutek did not at any stage declare that work for the day had ended. On the other hand, Kutek and Gartlan's position remained unaltered. That is, no paid work was undertaken and that the time of day was passed drinking alcohol and playing pool until a decision was made to set off on the quad bike expedition. [41] The appellant submitted that a lot of work remained to be done around the property prior to the start of the quad bike ride and that this work would have been undertaken at the end of the ride. There was no impediment to working through the afternoon. The submission was put that neither Balderson nor Bingham were aware that the working day was over and from their perspective work could only cease when Kutek told the workers that they were free to leave. However at no time prior to the quad bike ride had Balderson and Bingham been told that work was over for the day. It was submitted that Kutek conceded that there was an enormous amount of work that could be done around the shed and yard. This led to a conclusion, according to the appellant, that the facts supported a finding that the quad bike expedition should be considered merely a pause in between work activities. [42] It was further submitted that in a context where there was a mix of work and alcohol consumption leading to a "muddying of the waters" between work and social activities, it was open for the Commission to conclude that the quad bike ride was another form of social activity being mixed in with work activities. It followed that on completion of the quad bike ride it may have been the intention that work would be resumed if only to complete a final tidy-up before employees departed for home. [43] I cannot accept the appellant's submission that the evidence supports a finding that the expectation was, or the requirement was, that work would continue on indefinitely throughout the day, and that it was intended that work resume after the quad bike expedition. Firstly, the fact that the state of the yard or the shed was such that there was unlimited potential for cleaning and clearing is not evidence that Kutek was minded to attack this task or that he instructed employees to do so. [44] Secondly, the evidence of Balderson and Bingham on the subject was speculative. Their evidence was to the effect that they thought that there was plenty of work to do and there did not appear any reason why work could not continue indefinitely. But this evidence does not support a finding that they were instructed to the same effect. In making these assertions there was no reliance on any positive statement or instruction from Kutek about work continuing indefinitely. Nor did either Balderson or Bingham explain how the notion of indefinite continuous work was consistent with a substantial intake of alcohol, pool playing, and the quad bike expedition. Nor did either of them claim that a continuation of work was non-negotiable, and that if they had asked Kutek if they could go home, that he would have refused such a request. [45] While I acknowledge the spontaneity associated with the continuation of drinking and recreational activities I am unable to accept that an entitlement to paid work would arise and continue indefinitely in such a haphazard manner, particularly when productivity would have been impaired by the effects of alcohol and the wages bill for five workers would have been significant. The quantity of alcohol consumed, the time from which alcohol started to be consumed, and the decision to replenish -- 11 of 23 -- 12 stocks and buy more alcohol during the morning, would suggest that the focus was squarely on recreation, not work. [46] Finally, Bingham's assertion that work was expected to continue indefinitely throughout the day is inconsistent with a prior statement he made to the Nominal Defendant on 13 November 2012 (Exhibit 4). On this occasion he stated (paragraph 8) that: "We finished at about 9.30am and then played pool and had some drinks. I had about 6 or 7 stubbies of Fourex Gold and the other were all drinking full strength cans of rum and coke. I estimate that they would have had 6 or 7 cans each. This would have been from around 9.30am to 12.00noon." [47] When Bingham was asked to explain the inconsistency when giving evidence in the proceedings he said that his reference was to finishing work on the trucks and that after that he moved into the shed and did other work. I do not find this explanation persuasive particularly in view of what Bingham went on to say in his prior statement. At paragraph 9 Bingham said: "At around 11.00am another casual employee, Steve arrived to collect his pay he was asked by Andrew to do a drink run so he did that and came back. Then Luke and I were going to leave but Celeste, Andrew's wife had brought food down for all of us." While Bingham sought to recant on that part of his prior statement which said that work ended at 9.30am, he did not seek to vary the content of paragraph 9. This part of his prior statement is inconsistent with his evidence in the proceedings that work was to continue indefinitely during the day. It is also evidence of the fact that he was not under any instruction from Kutek to continue working and that his intention to leave infers that any work that had started had ended by 11am. [48] On the balance of probabilities I find that whatever work was performed by Balderson on 24 February 2012 had come to end at or around 9.30am and that no further work was performed nor directed to be performed after that time. Was any Payment Made? [49] There was a conflict in the evidence about whether employees received any payment arising out of their attendance at Kutek's residence on 24 February. If a finding were made that employees were paid then it would logically follow that some work must have been performed. Mrs Balderson's evidence supported a finding that employees were paid cash for work on 24 February. She said that on the evening of her son's accident she attended upon the house of Shane Bingham for the purpose of collecting her son's car. While at Bingham's house she was given property belonging to her son which presumably had been left in Bingham's car by her son or had been taken from her son after his injury. The belongings comprised a boot with $390 cash stored inside, a wallet, a ring and a necklace. She said that there was no money in her son's wallet. It was her understanding that the money in the boot was her son's pay. -- 12 of 23 -- 13 [50] It was Bingham's evidence that on 24 February he was paid for the previous week's work and for the work that he did on 24 February. (T1-37). He said that before the quad bike expedition he placed his personal effects in the glove box of his car. He also said that Balderson put his boots in the car along with his personal effects including his pay. Bingham said that he believed that the $390 paid to Balderson on 24 February was payment for work done on that day plus payment for work on previous days that week. [51] Bingham said that at the start of the day Kutek asked him and the others to commence some work while he (Kutek) made up the pays. A similar proposition was included in Bingham's prior statement. This version is also consistent with Kutek's evidence that Friday was pay day and that it was Kutek's job to calculate the hours worked prior to his wife making the payments electronically. Given Bingham's evidence that Balderson was given $390 in cash for his wages, and Coral Lea Balderson's evidence that $390 in cash was found in Balderson's boot on the night of his injury, an inference may be drawn that on this occasion Kutek elected to pay his workers wages in cash and that he asked his employees to wait around while he processed their pays. This inference is supported by the content of Bingham's prior statement where at paragraph 9 he said that at around 11am, Steve, another casual employee "arrived to collect his pay". However, Kutek denied in his evidence that anyone was paid on that particular Friday. [52] Excluding Friday 24 February 2012, Balderson worked for 26 hours in his first week with Radjaz Concreting. At a pay rate of $25 per hour his earnings would have been $650. A pay slip of Balderson which was in the evidence as Exhibit 5 showed that Balderson was paid for $375 for 15 hours work for the period from 17 February 2012 to 23 February 2012 which was the normal pay week. In a prior statement in the evidence as Exhibit 6, Kutek said that it was his practice to pay cash for the first day because the employee is on trial and he never knew whether new employees would continue on in his employment. Hence the 11 hours worked on 20 February were not included on the pay slip. It was Kutek's evidence in the proceedings that he subsequently gave Balderson $300 in cash when he visited him in hospital, an amount representing his wages for Monday 20 February (a rounding up from the entitlement of $275 for 11 hours work). However in his oral evidence Kutek said that a subsequent review of his records showed that the Tuesday when 10 hours were worked was treated as the cash day. The payment owing of $250 was then rounded up to $300 and this was the amount of money he gave Balderson when he visited him in hospital. [53] Balderson did not agree that he was paid in cash for work performed on Monday 20 February 2012. In respect to 24 February 2012, Kutek and Garlan said that no one was paid any wages for the day. However, Bingham said that he got paid $100 in cash for his work and that other employees each received $50 in cash. Further it was Bingham's evidence that when he arrived at work on 24 February Kutek told him inter alia that he was going to prepare the pays or sort out the pays. Given that Friday was pay day, that $390 in cash was found in Balderson's boot on Friday night, and having regard to Bingham's prior statement that de Brueys attended Kutek's property on 24 April to pick up his pay, it follows that some wages were paid by Kutek on 24 February. -- 13 of 23 -- 14 [54] The evidence around payment was relevant to a resolution of the question of whether Balderson was paid in respect to his attendance on Friday 24 February 2012. Kutek's practice of mixing cash and electronic payments, his failure in the case of cash payments to identify gross and net amounts, and the inconsistency in evidence around payment for the trial day and when he gave Balderson $300 in cash, leads me to prefer the evidence of Coral Lea Balderson and Bingham in terms of payment of wages. Accordingly I find that employees were paid wages on 24 February and that some of the wages paid was attributable to some work on that day. On an hourly rate of $25 per hour, a payment of $50 to Balderson would suggest payment for about two hours work. This outcome is consistent with a finding that whatever work was done on 24 February 2012 had ended by 9.30am. The Quad Bike Ride [55] The evidence revealed that Newman and Kutek had participated in a quad bike ride on Australia Day on a nearby circuit at the Pinnacles. This ride had featured in discussions over lunch. Balderson and Bingham said that Newman and Kutek raised the subject and offered to show the trail to the others. It was their evidence that the ride occurred at the initiative of Newman and Kutek. [56] Kutek said that after lunch Newman suggested the quad bike ride. He said that he was reluctant to allow the ride to take place, but he was talked into it by the others. Gartlan said that he was playing pool at the time that the subject of the quad bike ride was raised, but that Newman told him that the ride was going to take place and asked him to help fuel up the bikes and pump the tyres up. [57] There is little divergence in the evidence about how the quad bike ride started. I accept that a discussion took place during lunch where Newman and Kutek told the others about the Australia Day ride. It is not important in my view whether the ride occurred at Newman's suggestion or at Kutek's suggestion, or whether Kutek was enthusiastic or reluctant about the expedition. Kutek was the person in authority and he was the owner of the quad bikes. The ride could not occur without his approval. [58] While Balderson suggested that he had no option but to go on the ride because he depended on Bingham for a lift home, the evidence does not support a conclusion that Balderson or anyone else dissented from the idea, and it can be inferred that all participants were willing, if not enthusiastic, participants. Additionally while the evidence was disputed, Gartlan and Kutek said that when de Brueys declined to participate in the quad bike ride he offered Balderson a lift home. Finally, as previously indicated Bingham foreshadowed in his prior statement that he and Balderson were going to go home at 11am. Apart from implying that work had ended by 11am, it can also be inferred from this evidence that Bingham and Balderson would make their own decisions about what they did after 11am. Consequently while Balderson may have been encouraged by others to participate in the quad bike ride, and while his transport arrangements may have influenced his decision, the evidence does not support a finding that Balderson was compelled to participate in the ride. -- 14 of 23 -- 15 Ordinary Recess [59] The appellant's claim is pressed by reference to s 32(1) and s 34(1)(c) of the Act. Section 34(1)(c) provides in effect that an injury is taken to arise out of, or in the course of, the worker's employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker's employment and while the worker is temporarily absent from the place of employment during an ordinary recess; provided that the event is not due to the worker voluntarily subjecting himself to an abnormal risk of injury during the recess. Further employment need not be a significant contributing factor to the injury in these circumstances. [60] While I accept that Balderson attended for work on 24 February 2012 as required under the terms of his employment, I am unable to conclude that his injury was sustained during an ordinary recess. The term "ordinary recess" was considered by the High Court in Landers v Dawson2 with the majority (Kitto, Taylor, Menzies and Owen JJ) stating that they agreed with the conclusion reached in Drummond v. Drummond3 wherein it was stated that an equivalent provision to s 34(1)(c) was: "...Intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunchtime, or a 'smoko' or similar break normally referred to as a 'recess'… The word 'recess' in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or 'smoko'. It is a period of rest incidental to a period of labour in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day." [61] In a separate judgment in Landers,4 Windeyer J advanced the following views: "By 'an ordinary recess', I take it, is meant a break or interruption of limited duration in the continuity of a normal working day, regularly allowed for meals or rest. The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. Recesses, variously called lunch- hours, tea breaks, smokos, stand-downs etc., are normal features of employment in many industries. They are ordinary recesses. It seems to me a misuse of words to say that the appellant when he was swimming was temporarily absent from his place of employment during an ordinary recess." [62] On the authority of Landers5 it is convenient to determine the matter before me by establishing whether the quad bike expedition occurred in an interval between two or more periods of work in the normal day or whether the expedition could be characterized as a relatively brief interruption in an otherwise continuous period of work. Expressed differently the question to be answered is whether all work performed on 24 January 2012 had concluded prior to the quad bike commencing. 2 Landers v Dawson [1964] HCA 35. 3 Drummond v. Drummond [1960] VR 462. 4 Landers v Dawson [1964] HCA 35. 5 Landers v Dawson [1964] HCA 35. -- 15 of 23 -- 16 [63] Whatever work was performed by Balderson on 24 February 2012 had come to end at or around 9.30am and no further work was performed nor directed to be performed after that time. Accordingly I do not accept that the period that Balderson was absent from the workplace during the quad bike expedition could be considered as an ordinary recess. [64] In the circumstances it is not necessary to make a determination about whether the event that led to Balderson's injury was due to Balderson voluntarily subjecting himself to an abnormal risk of injury. Arising out of Employment [65] The appellant submitted in part that Balderson's injury arose out of employment. I do not think that this submission can be sustained. It is well accepted that the words "arose out of" require a causal connection between employment and the injury. In order to establish causality the appellant submitted that Balderson was still working when he was injured because the quad bike ride was to be considered a continuation of the mix of work and recreational or social activities that had commenced earlier in the day. Setting aside a consideration of whether the bike ride constituted a work related social activity which may have brought the injury within the "course of employment", I am unable to accept that riding a quad bike could be considered part of Balderson's normal work duties. There is no basis, on the evidence, for me to find that work, as the term would normally be understood in Balderson's context, caused the injury. Put differently, the driving of a quad bike through the Gumlow bush could not be considered part of Balderson's employment in general, or his work duties in particular. If a causal connection cannot be established then the injury cannot be said to have arisen out of the employment. Course of Employment [66] Section 32(1) of the Act requires that a determination be made about whether Balderson's injury occurred in the course of his employment. It is well established that the question of what may be in the course of employment (Barwick CJ in Danvers):6 "…Is referable to the general nature 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." [67] A further consideration is the requirement alluded to in Comcare v PVYW7 for there to be a factual connection or association between the circumstances of the injury and the employment. A need the High Court said was implied by the definition of injury. The Court discussed the association between the circumstances of injury and the employment in these terms: "53. The connection or association spoken of is not the causal connection which is attributed to the expression 'arising out of ... the employee's employment' in the definition of 'injury' in the SR&C Act. It is accepted that compensation may be payable in respect of an injury which is suffered 'in the 6 Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529. 7 Comcare v PVYW [2013] HCA 41. -- 16 of 23 -- 17 course of' the employee's employment notwithstanding that there is no such causal connection. The connection presently spoken of is by way of an association with the employment. In Kavanagh v The Commonwealth, Dixon CJ said that 'no direct ... causal connexion ... is proposed as an element necessary to satisfy the conception of an injury by accident arising in the course of the employment but only an association' with the employment. 54. Dixon CJ expressed that association in two ways. In a positive sense it might be said that, had it not been for the employment, the injury would not have been sustained. Put negatively, and perhaps more usefully for present purposes, it requires that 'the injury by accident must not be one which occurred independently of the employment and its incidents'." [68] Earlier in Whittingham8 Dixon J. had considered the connection between the worker's employment and what the worker was doing at the time that he was injured, in these terms: "…The sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment. In this case the question appears to be whether the presence of the appellant at the place where he was struck by the cricket ball was connected with the actual performance of his duty in a sufficient degree." [69] There have been a number of cases where the employment boundaries have been extended to include injuries sustained while employees have been participating in recreational and social activities. The observations made by Basten JA in a recent decision of the NSW Court of Appeal Pioneer Studios Pty Ltd v Hills9 are relevant: "The core element of a worker's course of employment will be attendance at a workplace or carrying out work functions, during usual business hours. The nature of the core will vary depending on the nature of the work. Over the years, the boundaries have tended to erode. Thus it is now well accepted that social events (such as the office Christmas party) and recreational activities (such as trips on days off work for employees required to remain at remote locations) can well form part of the course of employment. Such events and activities tend to be marked by the employer's commitment of time and resources to organising the events and encouraging staff to attend. The fact that clear boundaries have been eroded does not mean that there are no boundaries; rather, the further from the core one moves the closer scrutiny of the circumstances involved (paragraph 37)." [70] An early case involving injury during a work related recreational activity was the matter of Commonwealth v Oliver10 where an employee was injured while playing cricket during his 30 minute lunch break. The employee was employed at an aircraft factory at Avalon Aerodrome. His lunch break was held from 12noon to 12.30pm each day. It was the practice for the employee to leave his work a few minutes 8 Whittingham v. Commissioner of Railways (W.A) [1931] HCA 49. 9 Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 . 10 Commonwealth v Oliver [1962] HCA 38. -- 17 of 23 -- 18 before 12 o'clock, go to the canteen, obtain the lunch of three or four men as well as his own and bring it to the hangar. Cricket was then played on a concrete apron in front of the hangar. Having regard to the shortness of the luncheon interval, the distant situation of the aircraft factory at Avalon, and the existence of the canteen, employees would, as a matter of course, remain on the premises during the interval and it was a recognized practice to play some game during the interval. In deciding this matter Dixon J concluded: "In the present case I think that the circumstances of the employment make it clear that the employees were not expected to leave the premises for lunch, that the custom of playing for a time during the thirty minutes allowed for lunch was a recognized practice and the proper inference is that the course of the employment extended over that half-hour. Once the conclusion is reached that the course of the employment so extended there is a decisive reason for deciding, on that basis, that the accident was in the course of the employment notwithstanding it arose from a game." [71] Oliver11 is distinguished from the facts of this case in that in Oliver12 employees were not expected to leave the premises for lunch, the playing of cricket during the thirty minutes allowed for lunch was a recognized custom and practice, and the game was played at the employees' place of work. Finally the employee was injured at or near the normal place of work. [72] In Badawi,13 the worker, a sales manager, was on a business trip to a ski resort for the purpose of securing the resort as a client of her employer. Business trips were a usual and integral part of her work. It was part of the business plan underpinning the visit to socialise with the prospective client as well as making formal presentations. As part of the socialising an arrangement was made for the worker and her supervisor to ski with a key contact of the resort. The worker was subsequently injured while skiing. The finding that the injury was in the course of employment was not challenged on appeal and the appeal turned on whether the employment was a substantial contributing factor to the injury. I distinguish Badawi14 on the basis that it is a different type of case to the matter before me. Badawi15 was another living away from home case in the same category as Hatzimanolis16 and Comcare.17 The determinative facts in those cases are significantly different to those that will decide the outcome of the appeal before me. [73] In Clancy v Department of Public Health18 a nurse was injured while playing in a football match held in the hospital grounds. The match was conducted for the purpose of assisting the wellbeing, care and treatment of patients who were encouraged to watch the match. In holding that the injury occurred in the course of employment the Court stated that an overriding feature was that: 11 Commonwealth v Oliver [1962] HCA 38. 12 Commonwealth v Oliver [1962] HCA 38. 13 Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd [2009] NSWCA 324. 14 Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd [2009] NSWCA 324. 15 Badawi v Nexon Asia Pacific trading as Commander Australia Pty Ltd [2009] NSWCA 324. 16 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. 17 Comcare v PVYW [2013] HCA 41. 18 Clancy v Department of Public Health (1962) NSWR2. -- 18 of 23 -- 19 "…The employer for its own purposes, and for its own advantage, encouraged the worker to come to the employer's premises and participate in the employer's organised recreational activities. Indeed, so important were these activities to the employer that on working days the employees participating therein were, in effect, paid for so doing." [74] The facts of this case can be distinguished from the facts present in Clancy19. This case is differentiated by the finding in that matter that the employer for its own purposes, and for its own advantage, encouraged the worker to come to the employer's premises and participate in the employer's organised recreational activities. Additionally had the employee not been rostered off, he would have been paid for his attendance at the game. [75] In Wolmar,20 the employee who was a housemaid employed by a motel, was injured while attending a staff Christmas party which was held at the motel. A few days prior to the party the manager of the motel had told the employee that he wanted her and her husband to attend the party which was to commence at about 6.30pm. However the employee was not obliged to attend the party and she was free to accept or refuse the invitation. On the day in question the employee finished work at 4.30pm and returned to the motel to attend the party at about 8.00pm. [76] In deciding Wolmar21 the court rejected the proposition that the injury arose out of the employment on the basis that there was no causal relationship between the employment and the injury, but did accept that the injury occurred in the course of employment. The court found that the party was put on by the employer to further relations between the management and the staff, and between the staff themselves. In deciding the matter the court stated that: "An employee who, without being required or paid or expected to do so, co- operates freely with his employer in doing something associated with the business is 'authorised' by the employer to do it; and if the thing that the employer and employee are doing together is sufficiently associated with the employment it will be incidental to it, and the injury sustained while doing that thing will arise in the course of employment." [77] I distinguish the facts and circumstances of this case with those applicable in the case of Wolmar22. Differentiating factors include that the Christmas function in Wolmar23 was a significant annual event which had been planned and organised by the employer and where the employer had attached a specific purpose to the event of improving workplace relationships. Further, the court also formed the view that the average worker would consider attendance at the annual Christmas party to be "part of the job" a conclusion which implies that there was an expectation that the employee attend an event of some special significance. In my view the facts and circumstances of Wolmar 24would be more comparable with the case before me if 19 Clancy v Department of Public Health (1962) NSWR2 20 Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 21 Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 22 Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 23 Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 24 Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 -- 19 of 23 -- 20 the manager had, without giving prior notice, invited employees to join him for a drink after work. [78] In the case of Shirley Joy Cooper25 the employee (Cooper) was employed by a nursing home. In the lead up to Christmas she volunteered to assist with the preparation and conduct of a Christmas party which the employer proposed to conduct for residents and their families at the Nursing Home. In providing assistance Cooper carried out many tasks such as setting and decorating tables, running food from the kitchen, clearing tables, stacking plastic chairs, dismantling tables and interacting with residents and their families. In deciding the matter President Hall stated: "Here, Ms Cooper's participation was not merely authorised or expected. It was sought. Further, the employer used monthly meetings of employees and the Communication Book used for communication between shifts to seek staff volunteers." [79] The decision in Cooper26 does not support the appeal. While undertaking voluntary work, the employee when injured was performing a range of tasks that would ordinarily be undertaken by employees of the nursing home on a paid basis. Further, the employer had actively sought volunteers to do the work and had used monthly meetings and other methods of communication to encourage employees to volunteer. The activity being undertaken by the worker could hardly be described as a social or recreational activity, not did the activity occur away from the employer's premises. Conclusion [80] The injury sustained by Balderson was not sustained in an interval or interlude in an overall period or episode of work as was the case in Hatzimanolis27 and Comcare v PVYW.28 Balderson's injury occurred between two discrete periods of work, the first period ending in the morning of 24 February 2012 and the second period starting on the next day that work was to be performed. Both Hatzimanolis29 and Comcare30 are authority for the proposition that: "An injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work."31 [81] The appellant relied on the decision in Henderson32 in submitting that the fact that Balderson's injury occurred soon after the conclusion of work or a period of work should mitigate in favour of the appeal. However this was but one factor for 25 Shirley Joy Cooper and Q-COMP (C/2010/38) Decision - http://www.qirc.qld.gov.au. 26 Shirley Joy Cooper and Q-COMP (C/2010/38) Decision - http://www.qirc.qld.gov.au. 27 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. 28 Comcare v PVYW [2013] HCA 41. 29 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. 30 Comcare v PVYW [2013] HCA 41. 31 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. 32 Henderson v Commissioner for Railways [1937] HCA 67. -- 20 of 23 -- 21 consideration in Henderson33 and the significance to be attached to an injury occurring after the conclusion of work was treated differently in Comcare v PVYW34 where at paragraph 28 the majority judgment stated in reference to the reasoning in Hatzimanolis:35 "28. In the ordinary situation, where work is performed at a permanent place of work, an injury occurring after the working day would not normally be regarded as occurring in the course of employment. An injury occurring between two discrete periods of actual work is less likely to be seen as in the course of employment. On the other hand, an injury occurring in a lunch break might be understood as occurring in an interval in an overall period of work." [82] As Windeyer J stated in Danvers36 "doubtless the question in every case is one of fact and degree". In this case a determination has to be made on the facts whether the connection or association between Balderson's injury and his employment is sufficient to bring it within the course of employment. [83] There was no established practice of performing maintenance or cleaning functions during periods of wet weather. Bingham said that during the course of his employment he had on other occasions completed paid work around the property. He conceded however that neither Gartlan nor Newman had undertaken any such work. At the time of the injury Gartlan had been employed by Radjaz concreting for about 12 months, hence it may be inferred from Bingham's evidence that work around the property had not occurred during the 12 months that Gartlan had been employed. This inference is consistent with Kutek's evidence that the activity occurred about once a year. In my view the evidence cannot support a finding that cleaning or maintenance work at Kutek's property was a regular practice. Most likely it was an occasional event occurring once or twice year. [84] The employer had made no prior announcement to the effect that if no work was to be performed on 24 February because of wet weather, employees would be redeployed into cleaning or clearing activities on and around the employer's residence. What motivated the cleaning or clearing activities is not clear on the evidence, but it was not scheduled work and it is clear on the evidence that nothing that happened on 24 February fitted this description. On my findings, whatever work was undertaken was of limited duration, and once it ended the activities that follow were distinctly recreational in character and significantly influenced, or driven by, the drinking of alcohol. [85] The social activities evolved in a spontaneous manner following the cancellation of normal work. None of the four employees that attended at or around 6.30am that morning appeared to have commitments on the day other than work. With time on their hands there appeared to be general enthusiasm for the prospect of drinking beer and playing pool. [86] By the time the quad bike expedition had commenced, work had finished some significant time prior thereto. On my finding, work had ended around 9.30am in the 33 Henderson v Commissioner for Railways [1937] HCA 67. 34 Comcare v PVYW [2013] HCA 41. 35 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. 36 Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529. -- 21 of 23 -- 22 morning and was followed by drinking, socialising and pool playing. Employees were enjoying themselves and having fun. The suggestion that employees might participate in a quad bike ride arose out of these circumstances. [87] In my view by the time the quad bike expedition had commenced there was no association between the bike ride and Balderson's employment. The quad bike expedition was connected to the social activity and not the work that had been performed earlier in the day. The activity causing the injury followed on from, and could be considered part of, a significant period of socialising. The quad bike expedition was an extension of the social or recreational activities. [88] While the employer was the leader of the quad bike expedition and was the owner of the quad bikes, there was no evidence suggesting that these vehicles were used by employees in carrying out normal work duties. Nor was the quad bike trail traversed located on the employer's property. [89] In my view the facts and circumstances of this case do not sufficiently align with the facts and circumstances of other cases where an injury sustained during a work related social or recreational event was found to be within the course of employment. As Basten JA stated in Pioneer v Hills37, events that fall within the course of employment "tend to be marked by the employer's commitment of time and resources to organising the events and encouraging staff to attend." I do not believe that the facts of this case give it a similar character. [90] In my view the facts and circumstances of this case are more aligned to activities that can result from an exchange between workers at the end of a days' work where someone suggests that everyone should adjourn to a nearby hotel for a few drinks. Alternatively after a long hard day at work the boss of a concreting gang might invite his employees to go to the pub where he will put $200 on the bar. These are ad hoc or spontaneous events that, while occurring contiguous with the end of the working day and involving the employer's participation and the employers encouragement of workers to attend, are nevertheless events which are not ordinarily considered to fall within the course of employment. [91] Ultimately a boundary has to be drawn and a determination made about whether an injury is sufficiently connected to the worker's employment to be caught by s 32(1) of the Act. In this regards the remarks of the majority judgment of the High Court in Comcare38 are apposite. In the course of their reasoning the majority mentioned the dissenting decision of Widemeyer J in Kavanagh39 in these terms: "Comcare's concern that the Full Court's approach to the Hatzimanolis test serves to expand employers' liability echoes the sentiments expressed by Windeyer J, in dissent, in Kavanagh. His Honour said that to construe the 1930 Act as entitling a worker to receive a payment in every case in which the worker falls sick or suffers any mishap is not to compensate 'injuries that befall men because they are workers in industry, but rather an incomplete and erratic form of general health, accident and life insurance'." 37 Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 . 38 Comcare v PVYW [2013] HCA 41. 39 Kavanagh v Commonwealth (960) 03 CLR 547. -- 22 of 23 -- 23 [92] Having concluded that Balderson's injury did not arise out of his employment or in the course of his employment, it is not necessary for me to decide whether the employment was a significant contributing factor to the injury. [93] The appeal is dismissed. I reserve the question as to costs. [94] I order accordingly. -- 23 of 23 --