In the Magistrates' Court of Victoria at Melbourne

1IN THE MAGISTRATES' COURT OF VICTORIA AT MELBOURNE 2 3 X00627507 4 5 6B E T W E E N 7 8PETER AKTYPIS 9 Plaintiff 10- and - 11 12RESOURCES NETWORK INTERNATIONAL PTY LTD 13 Defendant 14 15D E C I S I O N 16 17Delivered: 30 September 2008 18 19MR B. WRIGHT, MAGISTRATE 20 21Mr. M. O’Loghlen QC and Mr. M. Cvjeticanin (instructed by Arnold 22Thomas Becker) appeared for the Plaintiff. 23 24Ms. M. Florenini (instructed by Dibbs Abbott Stillman) appeared for 25the Defendant. 26 27 28ACCIDENT COMPENSATION – REJECTION OF CLAIM – WHETHER INJURY ARISING 29OUT OF OR IN THE COURSE OF EMPLOYMENT – INJURY WHILE AT FITNESS 30SESSION AT EMPLOYER’S CLIENT PREMISES – ACCIDENT COMPENSATION ACT 31s. 82 32 33 34 35(TRANSCRIBED BUT NOT RECORDED BY LEGAL TRANSCRIPTS) 1 2D E C I S I O N 3 Mr Aktypis claims worker's compensation payments for 4 a back injury which occurred on 4 April 2007 in a fitness 5 session at work premises. The defendant (“RNI”) denies 6 liability to pay that compensation on the basis the 7 injury was not work related in that it occurred outside 8 his employment. Mr. Aktypis was engaged as a senior 9 health safety and environment (“HSE”) consultant. 10 It was the nature of RNI's business to provide 11 various types of consultants to other companies, and for 12 those consultants to work at third party premises. One 13 of those companies was CSR Gyprock (“CSR”), which 14 contracted with RNI to supply consultants to advise on a 15 major upgrade to its manufacturing plant. At the 16 relevant time there were five RNI consultants on site at 17 CSR premises in Yarraville, one of whom was Mr Aktypis. 18 Substantially his duties were at CSR, which was 19 designated as his "key responsibility". He signed an 20 offer of employment dated 23 January 2008 with RNI. He 21 performed those duties mainly at CSR, although he did 22 work at other times from home. 23 The other four RNI employees at CSR were mainly 24 other engineers. There was no hierarchy among them as to 25 responsibility. They were each responsible individually 26 to the CSR project manager, a Mr Vanderway, or a Mr Lane, 27 who was a project director at CSR. Otherwise they would 28 report to Mr Scibberas, the managing director at RNI. 29 Mr Aktypis gave evidence that he also did some work

30 on behalf of RNI for Mallia Brothers. 31 Viva voce evidence in this matter was given by Mr

1.NS:NS 01/10/08 FTR:1 2 DECISION 2Aktypis 1 Aktypis, Mr Scibberas, and an investigator, Mr Rampal. 2 Mr. Aktypis’ background was as an engineer, 3 obtaining a degree at Swinburne in 1993. He regarded 4 himself as a professional engineer specialising in HSE 5 management issues. He had been working in Perth when he 6 saw an RNI advertisement for the CSR position. This was 7 an additional RNI position at CSR. The initial 8 consultancy deed between CSR and RNI was due to expire at 9 the end of March 2007. 10 He said that both he and RNI were keen to ensure 11 that the consulting work at CSR continued beyond March 12 2007. He said that his interest was to "curry favour" 13 with the people at the “highest level” at CSR, and that 14 this was in the interests of both RNI and himself. He 15 said that he was not privy to the negotiations about the 16 continuation of the consultancy agreement in about March 17 2007. Mr Scibberas had come out and dealt with the CSR 18 people personally in that regard, and did not discuss the 19 matter at all with Mr Aktypis. 20 In fact Mr Aktypis did not know of any other details 21 of the original and varied consultancy agreements. He 22 said that he and other RNI consultants suspected that the 23 agreement was being renegotiated because of Mr Scibberas’ 24 presence there at the time dealing with the CSR people 25 personally, though not discussing the issue with them. 26 Despite this Mr Aktypis said he had a dual role at 27 CSR, both to do his HSE consultancy work and develop more 28 work for RNI at CSR. He said that he was employed 29 because of his marketing experience, and that marketing 30 was a condition of his employment. 31 He pointed to the original job advertisement,

1.NS:NS 01/10/08 FTR:1 3 DECISION 2Aktypis 1 stating the need "for a HSE manager willing to 2 participate in the further development of the company's 3 growing professional reputation and client base". He 4 also referred to the offer of employment stating "you may 5 be required to undertake further marketing and business 6 development activities for RNI, including attendances at 7 various meetings and reviews located at RNI's St Kilda 8 office". Further, he was to "project a pleasant and 9 helpful attitude to customers at all times". 10 Beyond this there was no other written reference to 11 marketing as it pertained to Mr Aktypis, that is in 12 either the job advertisement or in the offer of 13 employment. 14 He later helped prepare a job description for his 15 job, which did not mention marketing. However this 16 appears to have been more of a generic job description of 17 a HSE manager, rather than his specific roles and duties 18 at RNI. He particularised his marketing activities as 19 consisting of marketing meetings at RNI’s St Kilda Towers 20 office, and taking a senior manager at CSR, Mr Bob 21 Stacey, out to lunch. 22 He was asked to arrange this lunch by Mr Scibberas 23 as his desk was next to Mr Stacey's desk. However this 24 lunch took place in May, well after the injury. 25 As to the first aspect, he had meetings at the St 26 Kilda Towers office of RNI with Mr Scibberas, which he 27 estimated to be almost monthly. Not all of these 28 meetings were for marketing, according to him, but for 29 other purposes as well, such as occupational health and 30 safety meetings, preparing a business development plan, 31 and for other reasons.

1.NS:NS 01/10/08 FTR:1 4 DECISION 2Aktypis 1 Importantly, he was paid, or should have been paid, 2 for those meetings by RNI. Under cross-examination he 3 conceded that there were no such formal meetings before 4 his injury, but maybe some informal ones for which he was 5 not paid. Also he had lunch with Mr Stacey and Mr 6 Scibberas well after his injury at CSR. Again, he was 7 paid for his time at the lunch with Mr Scibberas and Mr 8 Stacey, with Mr Scibberas paying for the lunch as well. 9 Mr Scibberas denied that the plaintiff had any 10 formal or informal marketing role at RNI, especially as 11 it related to CSR. He said that the reference to 12 marketing in the offer of employment was to give notice 13 that specific assistance may be required from time to 14 time for formal presentations. This was not requested in 15 Mr Aktypis' case. He denied any mention of marketing in 16 any pre-employment discussions with Mr Aktypis, save for 17 the formal presentation aspect which I have already 18 referred to. 19 It would appear that the post injury meetings at the 20 St Kilda Towers office related to the Mallia Construction 21 issues mainly. Mr Scibberas pointed out that he did not 22 request Mr Aktypis' assistance with marketing beyond the 23 matters I have raised, as he (Mr. Scibberas) was 24 responsible for that issue on behalf of RNI. 25 He disagreed that Mr Aktypis was developing 26 strategies for bringing or pushing business at CSR, or 27 had any such role at all. 28 The other matters raised by Mr Aktypis in the job 29 advertisement and the offer of employment do not assist 30 me in the determination of this case in that they only go 31 to the requirements of any employee in any job, tend to

1.NS:NS 01/10/08 FTR:1 5 DECISION 2Aktypis 1 state the obvious, and can really be seen in most job 2 advertisements. 3 Mr Aktypis was paid at an hourly rate, had flexible 4 hours, and would fill in timesheets each week. There was 5 no real clock card system. The template timesheet would 6 be filled by him detailing job, start and finish times, 7 dates and any breaks in working hours. 8 Turning now to the circumstance of the injury 9 itself, Mr Aktypis was injured when taking part in a 10 fitness session class in a meeting room on the CSR 11 premises. The session was conducted by a personal 12 trainer, arranged and paid for by CSR. 13 He said that he was invited to attend the session by 14 a Ms Suey, the project administrator at CSR. Mr Aktypis 15 found out about the fitness session from Mr Kusel, a 16 fellow RNI employee at CSR. Mr Kusel and another RNI 17 employee, Mr Heaele, took part in some of the fitness 18 sessions before. 19 In cross-examination Mr Aktypis said that his 20 primary motive to attend the session was to build 21 relationships with CSR employees for the purposes of RNI. 22 Another motive was general fitness. 23 He said that he communicated his intention to go to 24 the fitness session to Mr Scibberas about one to two 25 weeks before the session. He said that Mr Scibberas had 26 "no objection" (to use Mr Aktypis' own words) to his 27 taking part. Mr Aktypis said it was his own decision to 28 take part. He was not asked or encouraged to attend by 29 Mr Scibberas. 30 Mr Scibberas said that he did not know of any such 31 training sessions, or the involvement of any of his

1.NS:NS 01/10/08 FTR:1 6 DECISION 2Aktypis 1 employees until after the claim form was lodged by 2 Mr Aktypis. 3 Mr Aktypis agreed that after the injury Mr Scibberas 4 told him that he was not aware of the fitness sessions 5 prior to Mr Aktypis' injury. 6 Mr Aktypis's statement, first raised in cross- 7 examination, as to notifying Mr Scibberas of his interest 8 in the fitness sessions is interesting. In opening this 9 case senior counsel for the plaintiff, in referring to 10 paragraph 4(d) of the Defence alleging the defendant's 11 non-awareness of the plaintiff's participation in the 12 program, said that this was "perhaps so, but the 13 defendant was aware of other RNI employees taking part". 14 I note that no other RNI or CSR employee was called 15 by either party. Mr Scibberas said he was not aware of 16 other employees taking part. He said that after the 17 injury he did not believe that he could tell Mr Kusel and 18 Mr Heale not to take part in the fitness sessions as it 19 was in their time and on their own accord. He told them 20 not to over exert. 21 The fitness sessions were held on Wednesdays at 22 about 4.00 p.m. They were one-on-one sessions between 23 the personal trainer and each participant. 24 On 21 March 2007, which was the first day Mr Aktypis 25 took part, he clocked off at four o'clock according to 26 his payslip and later returned to work at five o'clock, 27 working until 6.30 p.m. He did not claim pay for the one 28 hour session. 29 On that day Mr Kusel took part as well, together 30 with one or two CSR employees, whose names Mr Aktypis did 31 not remember. They apparently worked in the sales area.

1.NS:NS 01/10/08 FTR:1 7 DECISION 2Aktypis 1 Mr Aktypis did not deal with them in his HSE consultant 2 capacity role or otherwise. 3 He next attended a session on 4 April 2007, on which 4 date he was injured. The pay records again show he 5 clocked off at about 4.00 p.m. to attend the session. 6 While performing a repetitive sitting and standing 7 exercise with a medicine ball, he felt a pain to his 8 back. On that day the only participants were Mr Kusel 9 and another non-RNI contractor, a Mr Piper. There were 10 no CSR employees taking part with the personal trainer 11 there on that day according to Mr Aktypis. After the 12 pain occurred he said that he sat down and watched the 13 others. He told Mr Piper and Mr Kusel about his injury. 14 He then said that he returned to his office, worked until 15 5.30 p.m., checking his emails and then turning off his 16 computer. 17 His pay records, based on his own template 18 timesheet, do not show him returning to work after 4.00 19 p.m., which is when he attended the training session. Mr 20 Aktypis said that his times were incorrectly entered by 21 him in that it does not show him working after the 22 training session at 5.30 p.m. 23 Mr Aktypis was cross-examined on the basis of a 24 signed statement dated 27 June 2007 he had made to an 25 investigator, Mr Rampal at the premises of Probe 26 Investigations. Mr Rampal said that he had a template 27 form of statement and filled it in as he interviewed Mr 28 Aktypis. 29 There were a number of crucial differences between 30 the contents of that statement and the oral evidence of 31 Mr Aktypis. In particular there is no mention of any

1.NS:NS 01/10/08 FTR:1 8 DECISION 2Aktypis 1 motive, primary or otherwise to "curry favour" or “foster 2 work relationships with CSR employees” or others in the 3 statement. Further, in the statement there is a sentence 4 stating that he "did not originally request from my 5 employer RNI to participate in this physical activity". 6 Mr Aktypis also took exception to the sentence in 7 the statement that it was voluntary to attend the 8 training sessions. He said that this was an "error” in 9 the statement. 10 This was surprising in that this case proceeded on 11 the basis that his participation was voluntary as opposed 12 to the result of any direct suggestion or encouragement 13 by Mr Scibberas for the plaintiff to take part. 14 Counsel for the defendant did not follow up on this 15 allegation as to the word "voluntary" in the statement. 16 However in cross-examination it was put to Mr Rampal, who 17 agreed, that Mr Aktypis used the word in the sense of 18 being “not compulsory”. This did not clear up Mr 19 Aktypis's objection though. 20 In any event Mr Aktypis said that the statement 21 about voluntariness and permission, together with other 22 parts in the statement as to which he did not elaborate, 23 were errors, and that he signed the statement "under 24 duress", to use his own words. He said that he was 25 “pressured” (again to use his own words) to sign the 26 statement by the investigator, as Mr Rampal had another 27 appointment to go to. He also said that Mr Rampal had 28 inserted some of the information in the statement before 29 the interview. 30 Mr Rampal denied any pressure on Mr Aktypis to sign 31 the statement, and said that if Mr Aktypis was not

1.NS:NS 01/10/08 FTR:1 9 DECISION 2Aktypis 1 prepared to sign the statement it would have been sent to 2 the Victorian WorkCover Authority unsigned. He denied 3 putting any information into the statement in advance. 4 I turn now to my findings of fact in this case. 5 Overall, I found Mr Aktypis' evidence to be an 6 unsatisfactory and many parts of his evidence hard to 7 accept. He was evasive in giving answers on crucial 8 questions put to him in cross-examination. It was 9 necessary for me on several occasions to remind him to 10 actually answer questions. Further, his evidence became 11 more forceful and adamant in a number of aspects as his 12 cross-examination proceeded. 13 For example, in his evidence-in-chief he stated that 14 he had two motives in intending the class, being to 15 foster relations and for personal fitness. In cross- 16 examination he emphasised that his primary motive was the 17 building of a relationship with CSR and project team 18 employees. He exaggerated the importance and 19 significance of his actual job with RNI at the CSR 20 premises, especially as it related to any marketing role. 21 I do not accept that evidence as being truthful. 22 Despite the importance of such a statement (as to 23 motive), it did not form part of his signed statement. 24 Further, in this signed statement he said that he did not 25 request permission from his employer to participate. 26 Such a statement corroborated Mr Scibberas’ evidence. 27 Also, Mr Aktypis stated in his own evidence before 28 me that Mr Scibberas told him after the injury that he 29 did not have any prior knowledge of the CSR fitness 30 sessions. 31 I reject Mr Aktypis' evidence that he was under any

1.NS:NS 01/10/08 FTR:1 10 DECISION 2Aktypis 1 duress or pressure to sign his statement by Mr Rampal. 2 Having observed his evasiveness and reluctance to 3 properly answer simple questions asked of him in the 4 witness box, I have difficulty in accepting that he 5 responded to any duress or pressure to sign the 6 statement. Also, as a qualified and experienced HSE 7 consultant engineer working on projects such as the CSR 8 project being valued up to $100m, I do not accept that he 9 would be prone to any duress or pressure to sign an 10 incorrect statement by the mere statement that the 11 investigator was late for an appointment. 12 I find that the signed statement did accurately 13 represent his interview with Mr Rampal and the statements 14 made by him therein. Overall I am not satisfied that on 15 all the evidence that Mr Aktypis' decision and motive to 16 accept the invitation to participate in the fitness 17 sessions had anything to do with a desire to "curry 18 favour" or "foster relationships" with any CSR/RNI or 19 other employees or contractors or otherwise "develop 20 work" for RNI. Without meaning any disrespect to Mr 21 Aktypis, he is a person who is obviously physically unfit 22 and overweight. 23 It was not the sedentary nature of his employment 24 that necessitated the participation in the training 25 sessions, it was his general lack of fitness and other 26 exercise. 27 He did not seek and was not paid for his time 28 participating in the fitness sessions. He specifically 29 stopped his billable hours at 4.00 p.m. on each of the 30 two days he attended. On his own admission he was, or 31 was entitled to be, paid for other attendances for any

1.NS:NS 01/10/08 FTR:1 11 DECISION 2Aktypis 1 marketing or other sessions at the RNI St Kilda Towers 2 premises, as well as for attending the lunch with Mr 3 Stacey. 4 I got the distinct impression he was very careful in 5 submitting correct time and pay details otherwise. I 6 would have thought that if he had “communicated his 7 intention” to attend the fitness sessions (to use his own 8 words) with Mr Scibberas, which evidence I do not accept, 9 he would have at least discussed the question of some 10 payment or other allowance for attending. 11 He gave no evidence of any prior knowledge that any 12 CSR person of relevance was attending the classes, let 13 alone those at the "highest level" (to use his own 14 words). 15 He was told of the existence of the classes by a 16 fellow employee, and later invited by Ms Suey from CSR. 17 Again, I would say that if he was motivated to “curry 18 favour” or “foster relationships” or similar primary 19 motive, he would at least have made some enquiries as to 20 who was attending the classes and whether it was 21 worthwhile for him to attend the classes. He did not 22 explain how attending such fitness sessions would have 23 advanced any such fostering of relationships, especially 24 as no relevant CSR staff attended. 25 The sessions were not group sessions with a trainer, 26 but were rather “one on one” sessions with the trainer 27 conducted at the same time and place with other 28 individuals. 29 Further, on the first day there were only two CSR 30 sales staff present, and indeed none present on the 31 second day. On the second day there was one other non-

1.NS:NS 01/10/08 FTR:1 12 DECISION 2Aktypis 1 RNI contractor present, as well as Mr Kusel. Mr. Kusel 2 was an RNI engineer not in any position of authority over 3 Mr Aktypis and working separately to him. 4 In submissions it was put that it was not for Mr 5 Aktypis to know who was to be attending the sessions. 6 However I disagree with that in view of his express 7 primary motive to take part in order to “curry favour” 8 and “foster relationships”. 9 If he was so concerned to build up his employer's 10 relationships and business at RNI there may well have 11 been other more constructive ways of doing so. He 12 attended no other social functions at CSR. He said that 13 his only other efforts at “fostering relationships” was 14 in attending two occupational health and safety meetings, 15 which I would have thought were part of his HSE brief 16 anyway. There was no other “mingling” despite that 17 evidence by him. 18 Overall Mr Aktypis's evidence conflicted in a number 19 of aspects with that of Mr Scibberas. Where there was 20 such conflict I prefer the evidence of Mr Scibberas. I 21 was impressed by his evidence, which was measured, 22 convincing, and overall more credible than that of Mr 23 Aktypis. Mr. Scibberas made appropriate and reasonable 24 concessions at times. 25 I prefer and accept the evidence of Mr Scibberas 26 that he had no knowledge whatsoever of the fitness 27 program at CSR, let alone Mr Aktypis' intention of taking 28 part. I further accept his evidence that Mr Aktypis had 29 no marketing duties or expectations apart from further 30 and specific paid aspects such as the Mallia project. I 31 do not accept Mr Aktypis's evidence that he was given the

1.NS:NS 01/10/08 FTR:1 13 DECISION 2Aktypis 1 job because of any marketing experience. 2 Mr Scibberas took the whole role in developing and 3 extending the consultancy agreement with CSR. Even Mr 4 Aktypis admitted that his only knowledge of the expiry of 5 the first consultancy agreement was a suspicion shared 6 amongst the other RNI employees at CSR based on Mr 7 Scibberas' increased attendances then at CSR. 8 I would have thought that if Mr Aktypis had any 9 marketing role at all he would have at least been told by 10 Mr Scibberas of the expiry of the first consultancy 11 agreement at the end of March 2007. Further, at best on 12 Mr Aktypis' own evidence his only activities to “curry 13 favour and foster relationships” were as I have discussed 14 above, namely the fitness classes, two other OHS meetings 15 at CSR and a later paid lunch. 16 Although it was not part of the plaintiff's closing 17 submission, the plaintiff cross-examined Mr Scibberas to 18 a considerable degree that Mr Kusel was the “nominated 19 expert” for the performance of the first consultancy 20 deed, presumably to emphasise the participation of Mr 21 Kusel in the training sessions as well. 22 However I accept Mr Scibberas' evidence that was not 23 the intention of the defendant (that Mr. Kusel was to be 24 the only nominated expert) and that was one of the 25 reasons why the new rates for the different RNI employees 26 were included in the variation deed. 27 I do not accept that the inclusion of Mr Kusel as 28 the “nominated expert”, even in the variation deed, takes 29 the matter any further. Given Mr Aktypis agreed that 30 there were four to five RNI employees at CSR in different 31 descriptions and working separately with no hierarchy, I

1.NS:NS 01/10/08 FTR:1 14 DECISION 2Aktypis 1 do not accept that it was Mr Kusel's role, express or 2 implied, to invite approve or encourage Mr Aktypis' 3 participation in the fitness class on behalf of RNI. 4 In this case it was not disputed by RNI that 5 Mr Aktypis hurt his back in the training classes on 4 6 April 2007, and that he had at least one day off work and 7 has incurred more than $5000 for related medical and like 8 expenses as a result. 9 However, as a result of my findings I must look at 10 this case on the basis that the only connection with his 11 RNI employment was that the fitness class took part at 12 the premises of CSR in a period where he was not paid by 13 his employer. As stated, I reject the plaintiff’s 14 evidence that there was any other work-related reason or 15 motive for so attending the training class, apart from 16 the fact that it was convenient for him to attend there 17 in view of his general unfitness and otherwise lack of 18 exercise. 19 RNI and its relevant staff did not have any 20 knowledge of the fitness classes, or indeed the 21 participation of its employees. As Mr Scibberas stated 22 was something he could not prevent them doing afterwards 23 in their own time, e.g. the same as if they had 24 undertaken similar classes at night at a private gym. 25 There was no benefit or advantage to RNI in Mr Aktypis 26 participating in the fitness classes. 27 RNI did not pay for the classes or encourage the 28 participation of Mr Aktypis. On the balance of 29 probabilities I do not accept Mr Aktypis' evidence that 30 he did go back to his desk after hurting his back on 4 31 April to check his emails and turn off his computer. He

1.NS:NS 01/10/08 FTR:1 15 DECISION 2Aktypis 1 had done this after the previous fitness class, and was 2 documented in his pay records. 3 Insofar as the latter day was concerned, he did not 4 put any later hours in his pay record, did not disclose 5 that information in his signed statement or relate that 6 in any of his medical histories. 7 In view of my findings I must now consider the legal 8 consequences as to the alleged work relationship between 9 the circumstances of the injury and Mr Aktypis' 10 employment by RNI. Certainly I am assisted by the 11 submissions of senior counsel for the plaintiff. 12 I agree with his submission based upon the dicta in 13 Commonwealth v. Oliver 107 CLR 353, 364, adopting earlier 14 High Court dicta in Whittingham v. West Australian 15 Railways that "whether a worker's injury should be 16 regarded as arising in the course of employment is a 17 question of fact involving matters of degree in 18 determining the sufficiency of the connection between 19 employment and the thing done by the employee". 20 Earlier in Oliver it was stated at p.362 that "where 21 an employee is upon his employer's premises with the 22 employer's sanction during a break in his employment and 23 is injured, what seems to be a very slight connection 24 between what he was doing at the time of his injury and 25 his employment is sufficient to bring the injury within 26 the course of his employment". 27 However, as pointed by Mr Justice Kyrou in Reid 28 Stockfeeds v Lindhe [2008] VSC 304 at para. 17, “a nexus 29 must be shown between the relevant activity and the work 30 or service that the employee is required to perform, 31 referring to that activity as being incidental to work or

1.NS:NS 01/10/08 FTR:1 16 DECISION 2Aktypis 1 service". 2 In this case I do not find sufficient connection 3 between the circumstances giving rise to the injury and 4 the injury itself to make the injury work-related. 5 In this case I have already determined that 6 Mr Aktypis ceased his hours of employment at 4.00 p.m. on 7 the relevant date. I do not accept on the balance of 8 probabilities that he returned to any work that day after 9 ceasing work. His working hours were flexible, and there 10 were no normal or fixed completion hours (see 11 Hatzimanolis v. ANI 173 CLR 473 at p.483). His ‘ordinary 12 working hours’ had ceased at 4.00 p.m. prior to the 13 fitness class on the evidence before me. 14 In any event the injury to Mr Aktypis was too remote 15 from his employment, though he was invited to participate 16 by his employer's client at the session in a meeting room 17 on its own premises and at its own expense. 18 I have already found that the fitness classes and 19 the participation of at least Mr Aktypis and Mr Kusel was 20 not known to RNI and not agreed to by it. Mr Aktypis' 21 participation was voluntary, not paid or entitled to be 22 paid, and without any real or apparent benefit to RNI. 23 I specifically reject the submission that any desire 24 to "curry favour", "foster relationships" or "develop 25 business with CSR on behalf of RNI" played any part in 26 the subjective decision by Mr Aktypis to take part, or 27 objectively benefit RNI by his taking part. 28 As Mr Aktypis said, he needed to take part to get 29 some fitness, and it was convenient for him to do so at 30 the CSR workplace. His participation was motivated by 31 his general lack of fitness and lack of other exercise.

1.NS:NS 01/10/08 FTR:1 17 DECISION 2Aktypis 1 Although his work was sedentary this had no part to play 2 in making his participation ‘in the course of 3 employment’. 4 His participation was neither incidental, ancillary 5 or consequential to work or sufficiently within the 6 sphere of his employment to bring it within the course of 7 employment (see Oliver supra, at p.356). 8 His participation in the fitness sessions was not 9 reasonably required, expected or authorised in order for 10 him to carry out his actual duties (see Henderson v. 11 Commissioner of Railways 58 CLR 281 at 293). 12 On the facts I have found, the injury to Mr Aktypis 13 did not occur in an interval or interlude in his 14 employment. Thus, the dicta in WorkCover Authority v. 15 Walling 16 NSWCCR 527 is not relevant to this case, 16 despite the fact that I have found that RNI did not 17 induce or encourage his attendance at the fitness 18 sessions. 19 Finally, the injury did not arise out of his 20 employment either for the reasons I have set out above. 21 His employment as such in that particular job did not 22 cause or materially contribute to his injury. Further, 23 by merely attending a fitness class after hours at RNI’s 24 client's own premises for personal reasons was too remote 25 from his employment, and did not provide a sufficient 26 link to his injury to make his injury work-related for 27 the purpose of the Act (see Crowther v. Metropolitan Meat 28 Industry Commissioners 38 NSWR 116,120). 29 The proceedings will be dismissed. 30 - - - 31

1.NS:NS 01/10/08 FTR:1 18 DECISION 2Aktypis