Grey, Leo --- "The 'course of employment' after Comcare v PVYW: what are you doing now?" [2015] PrecedentAULA 72; (2015) 131 Precedent 18

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THE ‘COURSE OF EMPLOYMENT’ AFTER COMCARE V PVYW

WHAT ARE YOU DOING NOW?

By Leo Grey

The law governing statutory workers’ compensation in common law countries has long used variations on a well-known statutory formula to provide the basic link between injury and employment. In Australia, the basic statutory formula most commonly used confers the right to compensation on personal injuries ‘arising out of, or in the course of, [the employee’s] employment’,^[1] sometimes with the additional proviso that the employment should be a significant contributing factor.

The original form of the statutory formula was first used in United Kingdom legislation in 1897 and 1906. Despite the deceptively simple words, the difficulty in determining exactly what the statutory formula required became rapidly apparent after the enactment of the United Kingdom statutes, especially the 1906 Act.

THE COURSE OF EMPLOYMENT

Despite the difficulties in construing the statutory formula, it has long been accepted that the ‘course of employment’ covered not only the actual work that a person was employed to do, but also ‘the natural incidents connected with the class of work’. The ‘incidents’ of service could involve ‘resting between shifts’, ‘taking a meal’ or ‘merely standing by, waiting for the next job’. In considering what was ‘incidental’ to service, Dixon J said in Whittingham v Commissioner for Railways (WA),^[2] ‘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 Australia, for many years from the early 1930s onwards, the so-called Henderson-Speechley test^[3] was the touchstone for determining whether a worker was injured ‘in the course of’ employment while carrying out something that was arguably ‘incidental’ to the actual duties of the worker. That test asked whether the worker was doing something that he (or she) was ‘reasonably required, expected or authorised to do in order to carry out his actual duties’. But the usefulness of this test was complicated by the fact that the phrase ‘in the course of employment’ does not imply any causal connection between an injury and the employment (unlike the phrase ‘arising out of’ employment).^[4]

INTERVAL CASES

The need for a practical test to organise and apply the relevant factors related to injuries occurring when the worker was not engaged in actual duties is particularly acute in so-called ‘interval cases’. These are cases where a worker is injured in an ordinary interval during what is properly treated as a single period of employment, rather than in a break between two discrete periods of employment (such as the ordinary break between one work day and another, where the worker returns to his or her own home each night). It is in the context of such cases, where the worker was specifically not required to carry out ‘actual duties’ at the time of the injury, that the Henderson-Speechley test ran into significant difficulties.

The High Court decision in Hatzimanolis

In Hatzimanolis v ANI Corporation Ltd,^[5] the worker was posted to a mining camp in Mt Newman, Western Australia, for three months. He was generally not required to work on Sundays, which were available for rest and recreation. While Mr Hatzimanolis was ‘enjoying recreational activity at the camp’ it was conceded that he would have been in the course of his employment.^[6] However, he was not injured while at the camp. On one free Sunday, he was injured in a motor vehicle accident (encouraged by the employer) while on a recreational trip to see Wittenoom Gorge. Liability was denied on the basis that that particular recreational activity was not ‘in the course of’ his employment.

The High Court observed that while the matters referred to by Dixon J in Whittingham must be examined for the purpose of determining whether an injury was sustained in the course of employment, ‘those matters do not automatically determine that question’.^[7] Neither was the Henderson-Speechley test particularly useful, because only ‘by use of a strained interpretation of the words “in order to carry out his duties” is it possible to reconcile the application of the test with the decisions in many modern cases where workers have been held to have sustained injury in the course of employment’.^[8] What the Court thought was required was a new ‘organising principle’.^[9]

The practical test for interval cases reformulated in Hatzimanolis

The Court then set out the new test in declaratory terms:^[10]

‘Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.’

Under this test, the essential connection with employment that established whether the injury is sustained ‘in the course of’ employment was inducement or encouragement by the employer. Without such inducement or encouragement, there could be no compensation liability.

The subsequent application of Hatzimanolis

Between 1992 and 2013, numerous decisions at an appellate level in both state and federal jurisdictions were made, which applied the Hatzimanolis test to a number of factual situations which might be described as ‘interval cases’.^[11] While there were occasional judicial rumblings about its width, the test appears to have been applied without any significant attempts to limit its literal meaning. In particular, no attempt was made to bring any of the NSW Court of Appeal decisions in Inverell Shire Council v Lewis, McCurry v Lamb, and WorkCover Authority (NSW) v Walling before the High Court for further guidance.^[12]

THE CURIOUS INCIDENT OF THE BED IN THE NIGHT-TIME

The seemingly settled state of the law came to an end when a Commonwealth public servant from Canberra was injured in 2007 during an overnight work trip to another city, in the hotel room which had been booked for her by her employer, at a time when she was not required to carry out any duties. The agreed facts were that she had met up with an acquaintance she knew in that city, had dinner, and was subsequently having sex with him, when a light fitting on the wall above the bed in her motel room was pulled from the wall in some unspecified fashion, striking her in the face, and causing undisputed physical and psychological injuries.

The case for the injured worker was put on the basis that: (a) she was injured in a ‘place’ that she had been induced or encouraged to be by her employer; and (b), it was specifically agreed between the parties that sex in the circumstances did not amount to ‘gross misconduct’ for the purposes of the Hatzimanolis test, nor ‘serious and wilful misconduct’ under the relevant statute.^[13] It was not suggested that she was engaged in an ‘activity’ that her employer had induced or encouraged her to engage in.

This case, Comcare v PVYW,^[14] had a seesaw journey to the High Court. The worker lost in the Administrative Appeals Tribunal, won before a single judge of the Federal Court, and won again (unanimously) in the Full Federal Court. The High Court then granted Comcare special leave to appeal.

The re-interpretation of Hatzimanolis

In the High Court, Comcare did not argue that Hatzimanolis was wrongly decided, but submitted that the test needed a ‘tweak’. It was argued that a person could be within the ‘place’ limb of the Hatzimanolis test for some purposes and not for others. For example, sleeping was a use of the motel room reasonably contemplated by the employer. Using it for sex was not.

A majority of the High Court (French CJ, Hayne, Crennan & Kiefel JJ) allowed the appeal. The core of their reasons was as follows^[15]:

‘For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.

It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.’

The point being made by the majority may be summarised roughly in this way: ‘activity’ trumps ‘place’, and ‘activity’ requires inducement or encouragement by the employer.

Two members of the Court, Bell and Gageler JJ, dissented from the majority view of how the Hatzimanolis test should be understood. The judgment of Gageler J succinctly encapsulates the minority view:^[16]

‘Consistent with the Hatzimanolis principles, an injury that an employee sustains at a place where an employer has induced or encouraged the employee to be during an interval or interlude in an overall period or episode of work is, without more, properly to be characterised as an injury in the course of the employee's employment, unless the employee is engaged at the time of the injury in gross misconduct. It is not necessary that the employee, during that interval or interlude, also be undertaking a particular activity which the employer has expressly or impliedly induced or encouraged the employee to undertake. Nor, absent gross misconduct, is any inquiry into particular private activity of the employee relevant.

The approach reflected in the Hatzimanolis principles accords with a contemporary understanding of the employment relationship, which respects the privacy and autonomy of an employee as consistent with continuation of employment. Gone is the artificial fragmentation of an interval or interlude in an overall period or episode of work spent by an employee at a particular place at the inducement or encouragement of an employer into yet shorter periods of time each of which is to be further separately accounted for and discretely related to the employment relationship. Gone also is the intrusive inquiry that such artificial fragmentation entails into personal choices made by an employee, hour-by-hour or minute-by-minute, during an interval or interlude. In its place, it is sufficient for an injury sustained by an employee during an interval or interlude in an overall period or episode of work to be in the course of the employee's employment that (to adapt Lord Loreburn's language) the employee is where the employee would not be but for his or her employment, and is doing what a man or woman so employed might do without gross impropriety.

The central submission of Comcare in the appeal ... is to be rejected. Not only is a test for compensation stated in those terms inconsistent with the Hatzimanolis principles; it is a return to the outmoded, artificial and intrusive form of analysis that the Hatzimanolis principles were formulated to overcome.’

Two important points arise from a consideration of both the majority and minority judgments in PVYW.

First, the view taken by the majority necessarily ignores the ‘gross misconduct’ limitation in the Hatzimanolis test. Obviously, any ‘activity’ amounting to ‘gross misconduct’ is (by definition) not induced or encouraged by the employer, so no ‘gross misconduct’ limitation is required for that limb of the test. Similarly, if a worker’s mere presence at a ‘place’ is itself the result of ‘gross misconduct’, then (again by definition) the employer did not induce or encourage the worker to be at that ‘place’. The ‘gross misconduct’ limitation in the Hatzimanolis test could apply only where an ‘activity’ not induced or encouraged by the employer is undertaken at an employer-specified ‘place’. If that is correct, it follows that the PVYW test has not simply provided a more nuanced understanding of the Hatzimanolis test, as the majority decision suggests, but has fundamentally altered it.

Second, the simplicity and clarity of the Hatzimanolis test has been lost in a ‘back to the future’ return to the fine distinctions and minute analysis of the activities against the explicit and implicit authorisations of the employer, associated with the old Henderson-Speechley test.

THE LEGACY OF PVYW

The following sample of four cases provides some indication of how PVYW is being utilised and applied in practice.

(a) Lee v Transpacific Industries^[17]

Mr Lee had a compensable right knee injury suffered in the course of his employment with Transpacific at Newman WA. Following a medical review of his knee, it was recommended that he should consult a specialist in Port Hedland, involving an 8-10 hour round trip with his partner. On the return journey, they pulled into a roadhouse for a toilet break. On his way to the toilet, Mr Lee slipped on a pool of oil or water on the forecourt of the roadhouse, and injured his right ankle. Transpacific’s decision to reject his subsequent claim for compensation was upheld by the Administrative Appeals Tribunal, which found that the injury occurred between two discrete periods of work, rather than in an ‘interval’ in a single period of employment.

The Federal Court found that the Tribunal had been distracted by the characterisation of the ‘interval’ during which Mr Lee had been injured, and had failed to undertake the multi-stage inquiry required by PVYW. The Court then went on to use its powers under s44 of the AAT Act to decide the matter. It found that Transpacific had induced or encouraged Mr Lee to undertake the journey to Port Hedland and back. Further, it had induced or encouraged him to be at the roadhouse, in order to take a toilet break as an ‘incident’ of the drive back from Port Hedland. In addition, the injury had occurred by reference to the ‘place’, as a result of the slippery surface of the forecourt.

If this case is correctly decided, which is doubtful, it would be an unusual example of the decision in PVYW being used to extend liability for injuries occurring ‘in the course of’ employment – in this case, into breaks between discrete periods of employment, rather than simply applying to ‘interval cases’. However, with respect to the Court, that approach appears to be outside the scope of the Hatzimanolis test, even as re-interpreted in PVYW. The Tribunal’s ‘distraction’ with characterising the nature of the break in employment was (it is submitted) well-founded.

(b) O’Loughlin v Linfox Australia^[18]

Mr O’Loughlin was a tanker operator, employed by Linfox. In 2010, while delivering fuel to a service station, he suffered an injury during an altercation. A female customer had tooted her car horn to request service. A man appeared from the workshop and threw two objects at the car and proceeded to strike the car’s windscreen and one of the windows with his fist, while verbally abusing the customer. Mr O’Loughlin was concerned for the safety of the woman and feared that the thrown objects might have sparked, causing a fire around the tanker. He yelled at the assailant to stop. That led to subsequent verbal exchanges between Mr O’Loughlin and the man, which escalated. The man then came over to Mr O’Loughlin and hit him in the face. When Mr O’Loughlin did not walk away, the man kicked him several times, causing a serious injury to his left knee.

Liability was accepted soon after for a soft tissue injury to the face and a left knee injury. However, in January 2014, after the decision in PVYW, Linfox substituted a decision denying liability on the basis that it did not ‘arise out of or in the course of employment’. Mr O’Loughlin appealed to the Administrative Appeals Tribunal.

Linfox argued that the majority judgment in PVYW was not confined to an injury suffered in an ‘interval’ between periods of actual work. The question was whether Mr O’Loughlin was doing the very thing that Linfox had encouraged him to do when his injury occurred. In the alternative, if the majority’s proposition in PVYW was limited to an ‘interval’, then the injury was suffered in the interval of his employment when he pursued the confrontation even after his assailant walked away.

The Tribunal agreed with Linfox that the majority in PVYW held that, for an injury to occur ‘in the course of’ employment, an employee must, at the time of the injury, be doing the very thing that the employer encouraged the employee to do. While the Tribunal accepted that an employer might expect and encourage an employee to act responsibly by coming to the aid of a person in need, it found that Mr O’Loughlin’s subsequent verbal interactions with the man had inflamed the situation and continued the confrontation, when he could have diffused it instead. That activity was not induced or encouraged by Linfox.

With respect to the Tribunal, it was an inappropriate situation in which to apply PVYW, even though the Tribunal was encouraged to do so by Linfox. There was no pre-existing ‘interval’ in a single period of employment in which Mr O’Loughlin suffered his injury, so the argument went. The real case being put by Linfox appears to have been that Mr O’Loughlin, by his own actions, had created a short ‘interval’ which took him outside the ‘course of employment’,^[19] and that required the application of the PVYW test. That was to put the cart before the horse.

On appeal to the Federal Court, the Tribunal decision was set aside by Bromberg J. The reasons given by Bromberg J canvass a number of the difficulties posed by the way each party put its case, and repay careful reading. Linfox attempted to pursue the course of extending PVYW into intervals between separate periods of employment, but Bromberg J set aside the Tribunal’s decision on the basis that the Tribunal had failed to recognise that the PVYW test was to be applied only once it had been established that the injury had taken place in an ‘interval’ in a single period of employment. Bromberg J did not make any finding as to whether anything Mr O’Loughlin had done had taken him outside his employment, that being a matter which might have been raised on remitter, depending upon further submissions to be taken from the parties.

Putting aside the legal error, the conduct of the case by the Tribunal gives a good demonstration of the practical difference between the approach favoured by the majority in PVYW, compared with that favoured by the two dissenting judges.

The Tribunal’s approach in purporting to apply PVYW was to dissect, almost second by second, the sequence of events that occurred between Mr O’Loughlin and the other man, in order to determine whether, and if so when, Mr O’Loughlin had slipped momentarily (perhaps for under a minute) outside ‘the course of’ his employment, by engaging in an ‘activity’ that was not authorised by Linfox. Further, Mr O’Loughlin’s ‘activity’ and its relationship to the employment were interpreted narrowly by the Tribunal at each stage in the short period of the altercation. The question of whether there had been ‘gross misconduct’ or whether ss14(2)-(3) of the SRC Act applied, was apparently regarded as not relevant.

Finally, it is worth noting that Bromberg J was invited by Comcare (as a joined party) not to follow the decision of Siopis J in Lee.^[20] Bromberg J declined to offer any view about that decision, holding that its correctness did not arise in the matter before him, although his Honour did observe that ‘there is room for thinking that Siopis J took a different view of the intended meaning of the first sentence of [38] of PVYW to that which I prefer’.

(c) Smith v Ranger Camping & Outdoors^[21]

Smith was a case from the Western Australian District Court, which appears to have produced a very harsh result in the purported application of PVYW. In 2010, Ms Smith was driving from Perth to Busselton to collect some equipment on behalf of her employer. The vehicle travelling immediately in front of her collided violently with another vehicle. Ms Smith stopped and, with other passers-by, rendered assistance. She stayed with the driver of a truck who had suffered severe head injuries, offering such assistance as she could, until he died from his injuries about 30 minutes later. She then spoke to the attending police officers, and returned to Perth. Ms Smith subsequently claimed compensation for an accepted PTSD with reactive depression and anxiety.

In September 2012, her application for compensation was dismissed by a WorkCover arbitrator, on the basis that her injury did not arise out of or in the course of her employment. Interestingly, the arbitrator, although referring to Hatzimanolis, appears to have applied the Henderson-Speechley test. Ms Smith appealed to the District Court.

The decision of the District Court judge was handed down in April 2014, after the decision in PVYW. The judge referred to both Hatzimanolis and PVYW, quoting extensively from the latter. Nonetheless, he identified the critical question for the arbitrator as ‘whether ... [Ms Smith’s] activity in remaining at the scene and providing assistance was ... reasonably required, expected or authorised to be done in order to carry out her actual duties or necessarily incidental thereto’ – a modified version of the Henderson-Speechley test.

The judge found that the employer did not ‘engage or encourage’ Ms Smith to provide assistance to the victim of a motor vehicle accident, and there was no basis to infer that the employer would expect an employee to assist a victim of an accident that has no connection with the employment, or where the employee was not personally involved.

It does not appear that the appeal judge carried out the analysis required either by the earlier interpretation of Hatzimanolis, or as reinterpreted in PVYW, and the decision raises a number of questions about whether or not it was consistent with PVYW.

Under the pre-PVYW interpretation of Hatzimanolis, the first question would have been to determine whether the period when Ms Smith was assisting at the accident site was an ‘interval’ in the journey from Perth to Busselton. It might be such an ‘interval’, depending on the facts, but the situation could also have been characterised as a continuous period of employment properly described as ‘the journey from Perth to Busselton’, and the question would then be whether Ms Smith did something in the course of that journey which took her outside her employment.

If it be assumed that this was a true ‘interval case’, the question would have been whether, while Ms Smith was rendering assistance, she was at a ‘place’ that her employer had induced or encouraged her to be, or was doing something that her employer had induced or encouraged her to do. There might have been some latitude to find that that particular section of the highway from Perth to Busselton was a relevant ‘place’. Further, it is extremely unlikely that any reasonable employer would have instructed an employee to leave the scene of an accident where seriously injured people required assistance, particularly if no police and other emergency services were present. None of the relevant factual issues were canvassed by the judge. Further, there was no question of ‘gross misconduct’, as the judge commended Ms Smith’s actions in his reasons.

Under the reformulated test in PVYW, a more subtle question might have been asked; namely, whether at each stage of the ‘interval’ beyond the first minimum response (for example, telephoning the emergency number), Ms Smith was required to reassess whether her continued presence was necessary. Her decision to wait for a much longer period of time, and actively involve herself in the care of the dying driver, might raise the question of whether she had gone beyond the implicit encouragement of her employer. Evidence may also then have been required about the effect of that additional time on the causation of her post-traumatic stress disorder (PTSD).

(d) Pioneer Studios v Hills^[22]

Hills was a decision of the NSW Court of Appeal. When leaving a party at the premises of her employer, Ms Hills fell over a balustrade in a stairwell and suffered significant injuries. Her claim for compensation had a chequered history including one previous visit to the Court of Appeal, before coming back to the Court of Appeal in 2015, following rejection by a Deputy President.

The Deputy President made the following observation:

‘It is important to note that the High Court in both Hatzimanolis and PVYW were concerned with injury occurring during an interval or interlude in an overall period of work. The present facts concern an injury received at the respondent’s premises during an interval between [discrete] periods of work. Notwithstanding that factual distinction, the injury in the present matter may be found to have occurred in the course of employment if it can be established on the evidence that [the employer] expressly or impliedly induced or encouraged Ms Hills to spend that interval at a particular place, or in a particular way.’^[23]

The Court of Appeal held that the Deputy President had misconceived the test. The Court pointed out that in both Hatzimanolis and PVYW, it was said that if an employer had encouraged a worker to see a doctor after working hours, an injury which occurred while the worker was visiting the doctor would not be an injury ‘in the course of’ employment. Both cases were concerned with injuries occurring in an ‘interval’ in one overall period of work.^[24] While the Deputy President had acknowledged the distinction, he had applied the reasoning in PVYW without proper regard to it, and thereby erred in law.

It is clear, with respect, that the Court of Appeal was correct in affirming this distinction, which appears to be consistent with the decision of Bromberg J in O’Loughlin.

CONCLUSION

While the High Court has clearly added a significant gloss to the decision in Hatzimanolis, and left the relevance of ‘gross misconduct’ in the earlier decision somewhat in limbo, it is clear from the subsequent decisions that the decision in PVYW has done little to clarify or simplify the Hatzimanolis test. Rather, it has encouraged attempts to push the reasoning in PVYW beyond its natural limits, in an attempt to reduce workers’ entitlements even further.

First, there appears to be a persistent misunderstanding about the scope of the PVYW test, despite appellate attempts to dispel that misunderstanding. That decision applies only in the same situation in which Hatzimanolis applied; namely, to so-called ‘interval cases’. The suggestion that it can be applied to injuries occurring between discrete periods of employment is plainly wrong.

Second, there are signs that the PVYW test is being tested in situations which are really about whether the activities of the worker surrounding the injury have taken that worker outside his or her employment, rather than to injuries occurring in an ‘interval’. That draws attention away from the importance of misconduct as a disqualifying factor, whether as the limiting factor referred to in Hatzimanolis, or in its statutory manifestations.

Third, there seems little doubt that one effect of the decision in PVYW was to eliminate the simple reliance on ‘place’ as a criterion for liability in ‘interval cases’, and place the focus of attention back on the ‘activity’ being undertaken at the time of the injury. That begs the question of whether the ‘activity’ is to be liberally or closely defined. In PVYW itself, the ‘activity’ could be defined generally as ‘social or recreational activity’, or more precisely as ‘sexual intercourse with a casual partner’. The second description is a subset of the first, but may carry an implied suggestion of immorality for some sections of the community, particularly when applied (in an unjustifiably discriminatory fashion) to a single woman^[25]. Whereas activities covered by the first description might be within the contemplation and expectation of an employer, the acceptability to the employer of activities falling within the second more precise description, with its moral overtones, may arbitrarily depend upon the extent to which the employer feels entitled to pass judgement ex post facto on the manner in which a worker spent a relevant ‘interval’.

In the absence of any suggestion by the High Court that ‘activity’ is to be liberally defined so as to apply only to the general characterisation of what was being done, the PVYW test invites a strict analysis involving a minute-by-minute dissection of the activity undertaken at the time of an injury, even where that activity may not be causally connected to the injury. That will inevitably increase the time and money spent on such cases, and the unpredictability of outcomes.

It is difficult to avoid the conclusion that PVYW was a product of its own unlikely-to-be-repeated facts. As has been repeatedly said: ‘hard cases make bad law’.^[26] The only thing that made PVYW difficult was that it forced the High Court to confront casual sex presented as a recreational activity, no different from any other such activity carried out without gross misconduct during an ‘interval’ in a single period of employment. Of the ten appellate judges (four Federal Court judges and six High Court judges) who dealt with the matter, it was unfortunately only the four who formed the majority in the High Court who seem to have found that concept ‘a bridge too far’.

Leo Grey is a Sydney barrister, who has practised in Commonwealth compensation law since 1988. He was lead counsel for Ms PVYW from the Administrative Appeals Tribunal to the High Court.

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^[1] Safety, Rehabilitation and Compensation Act 1988 (Cth), s5A(1). See also Workers Compensation Act 1987 (NSW), s4; Workers Compensation Act 1958 (Vic), s5; Workers Compensation and Rehabilitation Act 2003 (Qld), s32; Return to Work Act 2014 (SA), s7; Workers Compensation and Injury Management Act 1981 (WA), s5 (definition of ‘injury’); Workers Compensation Act 1951 (ACT), s31; Return to Work Act (NT), s3 (definition of ‘injury’).

^[2] Whittingham v Commissioner for Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29.

^[3] The test enunciated by Dixon J in Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281, at 294, and Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 at 133.

^[4] Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 557 (per Dixon CJ), 558 (per Fullagar J), 572 (per Menzies J), Taylor & Windeyer JJ dissenting. See also Zickar v MGH Plastic Industries Pty Ltd (1995) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286; Australian Postal Corporation v Burch [1998] FCA 944; (1998) 85 FCR 264 (FFC); Health Insurance Commission v Van Reesch [1996] FCA 1118.

^[5] Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473.

^[6] Ibid, at 475.

^[7] Ibid, at 478.

^[8] Ibid, at 479.

^[9] Ibid.

^[10] Ibid, at 484.

^[11] See, for example, Comcare v McCallum (1994) 49 FCR 199; Comcare v Mather/Comcare v Mitchell [1995] FCA 1216; (1995) 56 FCR 456; Kennedy v Telstra Corporation Ltd (1995) 61 FCR 160; Inverell Shire Council v Lewis (1992) 8 NSWCCR 562; McCurry v Lamb (1992) 8 NSWCCR 556; WorkCover Authority (NSW) v Walling [1998] NSWSC 315; (1998) 16 NSWCCR 527.

^[12] McCurry also involved sex. If PVYW justified High Court scrutiny, these other cases should have as well.

^[13] Safety, Rehabilitation and Compensation Act 1988 (Cth), s14(3).

^[14] Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246.

^[15] Ibid, at 262.

^[16] Ibid, at 298-9.

^[17] Lee v Transpacific Industries Ltd (2013) 62 AAR 63.

^[18] O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000, on appeal from Re O’Loughlin v Linfox Australia Pty Ltd [2014] AATA 577.

^[19] This is the kind of situation raised in Bill Williams Pty Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146, and the line of cases which followed it.

^[20] O'Loughlin v Linfox, at [46]-[47].

^[21] Smith v Ranger Camping & Outdoors Pty Ltd [2014] WADC 40.

^[22] Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222.

^[23] Ibid, at [14].

^[24] Ibid, at [15]-[16].

^[25] Reference may be made to the exploitation of this implication in March 2015 by the then federal Employment Minister, Senator Eric Abetz, when he described Ms PVYW as ‘libidinous’, among other things, and her case as ‘infamous’ and ‘spurious’: for a critique of those comments see The Canberra Times, 31 March 2015.

^[26] See, for example, Winterbottom v Wright [1842] EngR 713; (1842) 10 M&W 109 per Baron Rolfe; Northern Securities Co v United States, [1904] USSC 64; 193 US 197 (1904), per OW Holmes J.