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Application by Koronos, a Member of the PNG Defence Force [1988] PGNC 13; [1988-89] PNGLR 90; N667 (17 June 1988)

N667

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF A CASE STATED BY CHAIRMAN OF THE WORKERS’
COMPENSATION TRIBUNAL AND IN THE MATTER OF SECTION 28 OF
THE WORKERS’ COMPENSATION ACT 1978 AND IN THE MATTER OF AN
APPLICATION FOR COMPENSATION BY CORPORAL ELGIN KORONOS
REG NO 11621, A MEMBER OF THE PAPUA NEW GUINEA DEFENCE FORCE

Waigani
Los J

15 December 1987
17 June 1988

WORKERS’ COMPENSATION - Injury "in course of employment" - Member of Defence Force - Injured playing town competition football for Defence Force - Injury not compensable - Test whether doing something "reasonably incidental" to employment - Workers’ Compensation Act (Ch No 179), s 54.

Held:

(1) A member of the Papua New Guinea Defence Forces who is injured whilst playing rugby league in and for a team organised, controlled and managed by the Defence Force, against a civilian team in a town competition organised by the Papua New Guinea Rugby League, is not entitled to claim compensation under the Workers’ Compensation Act (Ch No 179), s 54.

(2) The test to be applied in determining whether a worker is injured in the "course of the employment" for the purposes of s 54 is whether the worker was injured while doing something which was reasonably incidental to his employment.

R v National Insurance Commission; Ex parte Michael [1977] 1 WLR 109 at 113, adopted and applied.

Cases Cited

The following cases are cited in the judgment:

Hickox v Education Department [1974] VicRp 50; [1974] VR 426.
Noble v Southern Railway Co [1940] UKHL 1; [1940] AC 583; [1940] 2 All ER 383.
Nunan v Cockatoo Docks [1941] NSWStRp 23; (1941) 41 SR (NSW) 119.
R v Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No 1) [1966] 2 QB 21; [1966] 2 WLR 91; [1966] 1 All ER 97.
R v National Insurance Commission; Ex parte Michael [1977] 1 WLR 109; [1976] 1 All ER 566.

Stated case

This was a case stated under s 28 of the Workers’ Compensation Act (Ch No 179) for an opinion of the National Court on the question set out at the beginning of the judgment hereunder.

Counsel:

A Injia, for the applicant.
J Puringi, for the respondent.
Cur adv vult

17 June 1988

LOS J.: This is a case stated under s 28 of the Workers’ Compensation Act (Ch No 179) for an opinion of the National Court. The case stated is:

"Where a member of the Papua New Guinea Defence Force (soldier) sustains injury whilst playing rugby league in and for the Defence Force Club, a team which is organised, controlled and managed by the Papua New Guinea Defence Force, in town competition organised under the auspices of Papua New Guinea Rugby League:

(a) Is injury arising out of the soldiers’ employment within the meaning of s 54(1) of the Act?"

(b) Is injury arising in the course of the soldier’s employment within the meaning of s 54(1) of the Act?"

The material facts as found by the tribunal and accompanying the case stated are as follows:

1. The applicant, Elgin Koronos is currently a member of the Papua New Guinea Defence Force. At the time of the injury in 1978, he was a Corporal in the army and was posted to HQ Moem Barracks, Wewak. He worked as a radiographer at the Regimental Aid Post at Moem Barracks. He was 25 years of age then and married with a 2 1/2 year old daughter.

2. Corporal Koronos was employed on full time duty as a member of Papua New Guinea Defence Force — a member of the regular Force.

3. On Sunday 27 August 1978 at 4.30 pm Koronos was playing in the "B" Grade team of Defence Yellow team that played against Adworks Rugby League team — a civilian team at Pora Oval, Wewak. Koronos was a registered member of the "B" Grade, Defence Yellow team. The Defence Yellow team was at the material time organised controlled and regulated by the Papua New Guinea Defence Force. Koronos was authorised by the Papua New Guinea Defence Force to participate during the 1978 Wewak Rugby Season. Rugby League is an "organised sports" within the meaning of Operation Directive No 4 — Papua New Guinea Defence Force Sports Policy.

4. At the start of the game at sound of the whistle by the referee, Adworks kicked the ball downfield towards Defence Yellow territory. As soon as Koronos picked up the ball, two Adworks players tackled him to the ground. One of the tacklers executed a "late tackle" and fell on Koronos’ left leg and injured his left leg and ankle. As a result, Koronos was rendered immobile and suffered immense pain.

5. Koronos was immediately taken by Ambulance to Boram Hospital where he was admitted. A few days later he was transferred to the Regimental Aid Post at Moem Barracks. He was hospitalised for a total of 1 1/2 months. He was incapacitated from resuming duty for three months.

Paragraphs (6) and (7) relate to the injury and assessment of compensation which is not relevant to the questions, stated.

Before getting into the substantive issues, I want to deal with a jurisdictional question raised on behalf of the applicant. It was contended that the questions before the court were not questions of law but were questions of fact. They were questions that could appropriately be dealt with by a tribunal constituted under the Workers’ Compensation Act (Ch No 159) (Compensation Act).

The question of compensation to a worker emanates from many social policies. In each case facts may be as complex as a cobweb, let alone trying to categorise the facts in accordance with various social policies. Legal history has shown that the courts have taken a narrow approach to the interpretation of statutes dealing with workers compensation: R v Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No 1) [1966] 1 All ER 97. In England the questions of compensation went as far as the House of Lords. It had reached a stage where the Parliament had to decide to grant the task to a tribunal of fact rather than a tribunal of law to decide on compensation by applying common sense based upon the knowledge of industrial conditions: Noble v Southern Railway Co [1940] UKHL 1; [1940] 2 All ER 383.

In Papua New Guinea the statutory basis of awarding compensation to a worker is the Compensation Act. The Compensation Act gives exclusive jurisdiction to tribunals set up under the Act and a decision of a tribunal is final and conclusive: see s 22 and s 23. A tribunal is to act "according to equity and good conscience"; it is "not bound to observe strict legal procedure or to apply technical rules of evidence": see s 25(1)(a) and (b). I do not think, however, the provisions of s 25 apply as a licence to depart from the general principles of law that relate to compensating workers. Section 25 is subject to the whole Act. It is apparent that should there be any breach of the general principles or any question of law arises, an opinion of the National Court may be sought under s 28 of the Compensation Act, which provides:

"28. — Case Stated on Questions of Law.

When any question of law arises in any proceeding before it, including any question as to whether or not a person is a worker, a tribunal—

(a) may; and

(b) shall, if requested to do so by any party to the proceedings before it,

state a case for the decision of the National Court."

Note that the section provides that a tribunal may in its discretion state a case for the decision of the National Court; but where a party requests a tribunal to state a case, the tribunal has no discretion to refuse but it is obliged to state a case. Further, in my view, the exclusive power of any tribunal under the Compensation Act cannot prevent the invocation of the inherent and review power of the National Court under the Constitution where any tribunal departs altogether from the established principles or where it acts in an apparent breach of any provisions of the Compensation Act.

It seems to me that to date s 54 of the Compensation Act has not been the subject of any court interpretation in this country. At least I am not aware of any such decision. All the authorities cited to me are mostly English or Australian. Nevertheless they are relevant because they deal with similar statutes.

In the past the State had paid compensation to injured soldiers in a similar situation. However, the State as an insurer has decided to seek an interpretation of the section because it did not seem right to keep on paying compensation on the assumption that all has been legal. This is a question of law.

INTERPRETATION

Two principles are clear: s 54 ought not be interpreted so narrowly as to inhibit a tribunal from applying it to the varied circumstances of each case. The aim of the Compensation Act is to enable a worker to be compensated for personal injuries he suffers; the other, more as a consequence upon the first, is that courts have developed certain principles, so far as possible to award compensation, rather than refuse compensation.

Section 54 provides:

"54. — Liability of Employer to Compensate Worker for Injuries

(1) If in any employment personal injury arising out of or in the course of the employment is caused to a worker, his employer shall, except as provided in this Act, be liable to pay compensation in accordance with this Act.

(2) Without limiting the generality of Subsection (1), an injury shall be deemed to arise out of or in the course of the employment of a worker if it occurs—

(a) while the worker is in the course of a daily or other periodic journey between his place of abode and his place of employment, whether such journey is to or from his place of employment; or

(b) while the worker is in the course of a journey between his place of employment or place of abode and an institution which he is required by law to attend, or which he attends at the request of or with approval of the employer for the purpose of attending a class or undertaking training at such an institution; or

(c) while the worker is in attendance at an institution referred to in paragraph (b) for a purpose referred to in that paragraph; or

(d) while the worker is in the course of a journey between his place of abode or place of employment and any other place for the purpose of—

(i) obtaining in connexion with any injury for which he has received compensation or for which a claim for compensation has been admitted, a medical certificate; or

(ii) receiving, in connexion with any such injury, medical, surgical or hospital advice, attention or treatment, or while the worker is in attendance at any such place for any such purpose; or

(e) while the worker is in attendance at his place of employment for reason connected with his employment including any period—

(i) before he has commenced his work for the day; and

(ii) after he has concluded his work for the day; and

(iii) during an authorized break in his work,

so long as the worker—

(iv) is not guilty of any misconduct or breach of his employer’s instructions; and

(v) did not voluntarily subject himself to any abnormal risk of injury.

(3) While a worker is in the course of a journey from his place of employment under one employer to his place of employment under another employer, this section applies and has effect as if the first-mentioned place of employment were his place of abode.

(4) Notwithstanding any other law, a person who ordinarily engages in employment in connexion with which he customarily attends at a place of pick-up, shall be deemed to be working under a contract of employment—

(a) with the employer who selected and engaged him at the place of pick-up; or

(b) if no employer so selected or engaged him, with the last employer who, within the immediately preceding 21 days, selected and engaged him in that employment.

(5) Notwithstanding anything in this Act compensation under this Act is not payable—

(a) in respect of any injury that is consequent upon or attributable to the serious and wilful misconduct of the worker unless that injury results in the death or permanent total incapacity of the worker; and

(b) in respect of deliberately self-inflicted injury."

In my view four phrases in subs (1) provide general guidance to the interpretation of the rest of the subsections as well as the other provisions of the Compensation Act. The main phrases are injury "arising out of" and injury "in the course of employment". The other important phrases are "except as provided in this Act" and "in accordance with this Act".

From my reading it appears to me that under s 54(1) compensation is obligatory except where a provision of the Act prohibits payment. If compensation is payable it has to be in accordance with the Act. Dealing with the first; prima facie there is nothing in the Act that prohibits payment of compensation to an injured soldier because, for the purpose of the Compensation Act, a soldier is a worker: see s 39 of the Defence Act (Ch No 74), which provides:

"39. Workers’ Compensation.

(1) For the purposes of the Workers’ Compensation Act a member of the Defence Force is a worker, as defined in that Act, employed by the State.

(2) In relation to members of the Reserve Force, Subsection (1) applies only in relation to periods of service under Section 14(3)."

As a worker and hence as to the second point, payment of any compensation must be in accordance with the Compensation Act. It must be in accordance with the procedures set out in the Act as well as in accordance with the substantive provisions in the Act. Section 54 contains substantial provisions. If the applicant is compensated for the injuries he received when he was playing league as a member of a Defence Force team against a civilian team outside the Defence Force area at the weekend, would this be in accordance with the Act. Hence come the stated questions.

Section 54(2), (3), (4) and (5) are comprehensive and they define and describe circumstances under which, if a worker is injured, compensation is payable. In my respectful view the applicant does not qualify under any of those subsections. There is a qualification, however. Section 54(2) begins with the phrase "without limiting the generality of subsection (1)". If therefore the applicant cannot be compensated under any of the circumstances described by those subsections he may be qualified under subs (1).
I therefore look at the meaning of the phrases "arising out of" and "in the course of". These phrases are very broad. That is the sense I get from a reading of s 54(2); but surely there must be a limit. As there is no precedent in our jurisdiction I look to other jurisdictions for guidance. Some Australian cases attempted to provide the definition of those phrases when interpreting similar legislation. In Nunan v Cockatoo Docks [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 at 124 the phrase "arising out of employment" is described as "... the fact of his being employed in the particular job caused or to some material extent contributed to the injury". The phrase "in the course of employment" is described in Hickox v Education Department [1974] VicRp 50; [1974] VR 426 at 430 as:

"a worker, whilst not performing the actual duties of his employment, was caused injury at a time and place doing something which might be regarded as reasonably incidental to, consequential upon or ancillary to, his employment — not necessarily being required to be done as part of his obligation as an employee, but rather something that would be reasonably required, authorised or expected of a worker by his employer, as inferred from the facts and the circumstances of the existing relations between the worker and the employer."

It is apparent to me that the applicant is not qualified under the former but may be qualified under the latter. The sporting activities are part and parcel of being in the army; no doubt, it helps a soldier to keep fit. It is good for morale and good for comradeship. That the sports in the Defence Force are played for a multiplicity of purposes is reflected in par 2 of the PNGDF Operational Directive No 5 — PNGDF Sports Policy of 6 August 1976:

"2. Recreational training and organized sport form an integral part of military training. They can be beneficial to the individual, his unit and the Force as a whole by promoting self reliance in the individual while encouraging co-operation comradeship, esprit de corps, the development of leadership qualities and as a psychological balance to formal work. Both individual and team recreational training and sport are of value in training for operations, because they assist individuals and groups to adjust themselves to emergencies and rapidly changing situations. Both recreational training and organized sport therefore are to be encouraged and pursued by all members within the Force."

However, the sports are played on different levels. Paragraph 3 of the Directive categorises sports as — Recreational Training, Organised Sports, and Participation with Civilian Teams and Clubs. Under the first category the sports are played "during the normal parade hours as part of a unit’s training programme, and members ... are required to participate" (par 4). Under the second category, the sports are defined as "voluntary athletic, sporting and other physical recreational activity outside the normal requirements of a unit training syllabus" (par 10). In the third category, soldiers are "encouraged to play sports with Force teams that compete in civilian competitions" (par 22). They may compete as members of civilian teams in various circumstances (par 23 (1-4)).

For injury and compensation, a member who participates in any sports in the manner provided in the third category is advised by his Area Commander that should he receive any injury during the sports he will not be eligible for any compensation.

The facts show that the applicant was injured when he was playing league for his Defence Force team against a civilian team in a civilian competition. He was participating in an organised sport. By virtue of par 19 of the Directives the applicant would be regarded by the Defence Force as being on duty:

"19. Duty. For compensation purposes a member is regarded as being on duty when participating in an organized sport or any training associated with it after having been so promulgated in unit routing Orders or sports instruction (note par 12 also)."

Paragraph 25 envisages payment to members who suffer injury from organised sports.

"Injury and Compensation.

25. Officers or servicemen who suffer injury from recreational training or organized sport are to be medically examined where necessary and results documented. The reporting and investigation of injuries sustained at sport or during recreational training is detailed in Chapters 22 and 117 of the Manual of Personnel Administration."

Obviously the Defence Force Authorities have sought by virtue of the Sports Policy Directives to make it a compensable injury if an injury is suffered by a soldier during an organised sport. A question does arise, however, whether the directives are in accordance with any law. The question relates especially to the paragraphs that purport to authorise compensation payment to an injured soldier like the applicant. This is a question of law. If the directives do comply with the Compensation Act then the details and variation of factual situation are for a tribunal to determine.

The power to make sports policies and directives is purportedly derived from cl 3 of the Defence (Transitional) Regulations (Ch No 74). Can this power enable the Defence Authorities to create a right to pay compensation to a soldier injured in a situation such as the applicant? The aim of any set of regulations is to facilitate the execution or administration of an Act of the Parliament on the most practical level. Any directives or policy made under the regulations must not depart from that aim. In this case the main Act is the Defence Act. The Defence (Transitional) Regulation Act was passed to preserve orders, instructions or directives. Clause 3 preserves standing orders. These orders are on the lower level of scale; they are subject to the Act, subject to any regulations, made under the Act or subject to the Defence Council orders.

In my view there is no power to create any separate right to compensation for soldiers. A soldier has to seek compensation under the Compensation Act like other workers defined in s 1 of the Act.

I have foreshadowed earlier that the applicant’s claim could not be successful under any of the other subsections ie, s 54(2)-(5). I have also foreshadowed that the applicant could not be entitled to any compensation because his injury did not arise out of employment. The only question remaining is whether the injury arose in the course of employment. At the outset I consider the fact that numerous prior payments to the soldiers injured in similar situations does not create any binding legal precedent.

I cannot help but ask, had it not been for being a soldier could the applicant be compensated for the injury in the way it happened? Certainly not. But that is not the complete answer. He did not have to participate in the town competition because participation in organised sports in voluntary. It is irrelevant what the defence authorities thought. I am prepared to hold that playing league in the town competition was incidental to the applicant as a soldier. But that is as far as I can go. It is the context of reasonably incidental that decides whether or not a worker is entitled to compensation. A statement by Denning MR in R v National Insurance Commission; Ex parte Michael [1977] 1 WLR 109 at 113 gives some guidance. To avoid misinterpreting his Honour, I quote the relevant part of his statement:

"The problem must be resolved by reference to the words of the statute. In deciding in one case in favour of an injured policeman (who was playing in his on duty time) Sir Robert Micklethwaith QC said that the concept of ‘in the course of his employment’ has gradually been widened over the last 30 years. He held that a man is now to be regarded as entitled to injury benefit if he is injured while doing something ‘which is reasonably incidental to his employment’. This test of ‘reasonably incidental’ is to be gathered from the speeches of Lord Sumner, Lord Parmoor, and Lord Wrenbury in Armstrong, Whitworth and Co Ltd v Redford [1920] AC 757 at 777, 779 and 780, respectively. It was applied by the county court judge in Knight v Howard Wall Ltd [1938] 4 All ER 667, with the approval of this court. It was followed by this court in R v Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No 2) (the Culverwell case) [1966] 2 QB 31 at 48, 50, 51. But in all those cases the workman was at the premises where he or she worked and was injured while on a visit to the canteen or other place, for a break. The words ‘reasonably incidental’ should be read in the context, and limited to cases of that kind. They are not part of the statute and should not be extended to other cases without careful consideration. Take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something ‘reasonably incidental’ to his employment. But if he has an accident on the way, it is well settled that it does not ‘arise out of and in the course of his employment’: see Alderman v Great Western Railway Co [1936] 2 KB 90 and Netherton v Coles [1945] 1 All ER 227. Even if his employer provides the transport, so that he is going to work as a passenger in his employer’s vehicle (which is surely ‘reasonably incidental’ to his employment), nevertheless, if he is injured in an accident, it does not arise out of and in the course of his employment: see Vandyke v Fender [1970] 2 QB 292 at 305. It needed a special ‘deeming provision in a statute to make it "deemed" to arise out of and in the course of his employment’: see s 8 of the Act of 1965."

A point to note is that a lot of what could be regarded as incidental to employment is covered by s 54(2)-(5). A large part of physical fitness, alertness and being in a state of readiness and esprit de corps is provided in the first category of sports. In fairness, it may happen that in special instances taking part in town competitions may be "reasonably incidental" to employment. For instance where a league game cannot be played as part of the first category of sports because, say in a small group of soldiers stationed in a place where the only way to participate in a league game is to play against civilian teams or play as members of civilian teams.

My answers to the questions in the case stated are:

(a) No.

(b) No.

Questions answered accordingly

____________________

Lawyer for the applicant: The Public Solicitor.
Lawyer for the respondent: The State Solicitor.