Judicial determination - Whether worker's injury's compensable - Employer provides worker with a car park space - Worker required to drive to work every day to fulfil his duties - Worker fell over whilst walking to his place of employment from the car park provided - Right knee injury - Claim for compensation rejected - Whether injury arose out of or in the course of his employment - Whether real and substantial connection between the worker's employment and the accident - `Place of employment' - Worker was discharging duties of his employment - Determination set aside - S.30 Workers Rehabilitation and Compensation Act 1986.

Hatzimanolis v. ANI Corporation Ltd. [1992] HCA 21; (1992) 173 C.L.R. 473.

Danvers v. Commissioner for Railways (N.S.W.) [1969] HCA 64; (1969) 122 C.L.R. 529.

Henderson v. Commissioner for Railways (1935) 58 C.L.R. 293.

TransAdelaide v. Karanicos (unreported, Supreme Court S.A. Full Court S.5536 delivered 3 April 1996).

South Australia v. Brophy (1997) 68 S.A.S.R. 97.

This is a judicial determination of a dispute between Carlo Conte (`the worker') and the WorkCover Corporation (`the Corporation'), the resolution of which turns upon whether or not the injuries that the worker sustained on 20 March 1997, occurred in compensable circumstances for the purposes of the Workers Rehabilitation and Compensation Act 1986 (`the Act').

The facts giving rise to this matter, are in large measure, not in dispute and on the basis of the material that has been placed before me, I make the following findings of fact.

The worker is a man aged 41 years, who commenced employment with Olivetti Australia Pty. Ltd. (`the employer') as a customer engineer. He was later promoted to the position of field support engineer. The worker's employment duties required him to make repairs to computers and other equipment of that nature, either within the employer's workshop or at the premises of the particular customer. His work took him to locations at various places within South Australia and in the Northern Territory. His employment duties also required him from time to time, to order parts and to make pick-ups and/or make deliveries of computer equipment. It was a term of the worker's employment with the employer, that he provide his own vehicle for use on the employer's business. In respect thereof, the worker was paid by the employer an allowance of approximately $488.90 per month as well as a further amount calculated by reference to the number of kilometres travelled. Because the worker was required to transport tools equipment and the like, that calculation, in accordance with the Business Equipment Industry (Technical Service) Award, included travel between the worker's place of residence and his place of employment. In that context, the worker's motor vehicle, was a type of mobile service unit, containing a tool case, software, reference manuals, spare parts, cleaning equipment and other tools of trade used in the computer and electronic repair business.

At all material times, the employer conducted its business at 345 King William Street, Adelaide. About a block away from those premises, is a car park owned by the Adelaide City Council, at which the employer leased seven car parks and made these available to specific employees, one of which was the worker. As the employer stated in a letter provided to the Corporation :-

`The car park in question is about a block away from our Adelaide premises and as it is essential for Mr. Conte to drive his car to work and as we do not have car parking facilities in the building where our premises are situated, the company pays for Mr. Conte's parking.'

On the morning of 20 March 1997, the worker left his home at Payneham and proceeded to drive his motor vehicle into the car park provided to him by the employer. He parked his car in the parking space allocated to him. Having alighted from his vehicle, he was proceeding to walk to the employer's premises when he tripped over a low wall dividing the car park from the pavement and stumbled. This resulted in him sustaining an injury to his right knee, in respect of which he sought compensation pursuant to the Act.

By letter dated 2 May 1997, the Corporation advised the worker that his claim for compensation had been rejected. It did so on the basis that the injury did not arise out of or in the course of his employment.

The worker then lodged a notice of dispute challenging the correctness of the Corporation's determination. The notice was lodged out of time, but an extension of time was granted and as I understand it, the granting of extension of time within which to pursue this matter, is not at issue between the parties.

The relevant statutory provisions that touch upon the matters in dispute between the parties are as follows:-

`3. (1) "place of employment" means a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated;

30. (1) Subject to this Act, a disability is compensable if it arises from employment.

(2) Subject to this section, a disability arises from employment if-

(a) in the case of a disability that is not a secondary disability or a disease- it arises out of or in the course of employment; or

(b) in the case of a disability that is a secondary disability or a disease-

(ii) the disability arises in the course of employment and the employment contributed to the disability.

(a) attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and

(5) A disability that arises out of, or in the course of, a journey arises from employment only if-

(a) the journey is undertaken in the course of carrying out duties of employment; or

(i) the worker's place of residence and place of employment;

and there is a real and substantial connection between the employment and the accident out of which the disability arises.

(6) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).

The submissions advanced on behalf of the worker in support of his claim for compensation can be summarised thus:-

(1) The injury arose out of or in the course of the worker's employment with the employer.

(2) In the alternative, the worker was in attendance at his place of employment, at the time of the injury in preparation for the day's work and therefore the circumstances of his disability satisfy the criteria set out in section 30(3) of the Act.

(3) In the alternative, the worker was in the course of a journey between his place of residence and his place of employment and there was a real and substantial connection between his employment and the accident which caused him injury, such that the criteria contained within section 30(5) of the Act have been met.

(1) The injury must be seen as having arisen in the course of the journey and as such, the compensability of the resultant disability has to be determined by reference to section 30(5) of the Act.

(2) The journey was not being undertaken in the course of carrying out the worker's duties of the employment, that notion having a narrower meaning than the expression `arising out of or in the course of employment'.

(3) There was no real and substantial connection between the worker's employment and the accident in the sense that all that can be said, is that but for the worker's employment, the accident would not have occurred, and that is not the appropriate test.

The meaning of the expression `arising out of and in the course of employment' has been dealt with many cases, a number of which are discussed in the judgment of the High Court of Australia, in Hatzimanolis v. ANI Corporation Ltd. [1992] HCA 21; (1992) 173 C.L.R. 473, delivered by Mason C.J., Deane, Dawson, Toohey and McHugh J.J. Their Honours made reference to an earlier decision of the High Court of Danvers v. Commissioner for Railways (N.S.W.) [1969] HCA 64; (1969) 122 C.L.R. 529 and stated at p.481 of their judgment:-

`Barwick C.J., with whose judgment Kitto and Windeyer JJ. agreed, adopted the statement of Dixon J. in Henderson v. Commissioner for Railways (1935) 58 C.L.R. at p.293 that doing what was reasonably required, expected or authorised to be done in order to carry out duties may include being at a place of which the worker's presence:- "is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance of his employment." But Barwick C.J. said that in applying such a statement to the circumstances of a case, its elements "should be applied liberally and practically"... His Honour also said that, in determining the course of employment, regard had to be had: "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"'

There is little doubt in my mind, that the circumstances of the worker's injury satisfy this test. But for the reasons which now follow, I do not think that that is the test that the worker has to satisfy here.

The scope of section 30(5)

Although in TransAdelaide v. Karanicos (unreported, Supreme Court S.A. Full Court S.5536 delivered 3 April 1996) and in State of South Australia v. Brophy (1997) 68 S.A.S.R. 97, Doyle C.J., found it unnecessary to formally conclude that section 30(5) of the Act dealt exclusively with disabilities that arose out of or in the course of journeys, to the exclusion of section 30(2)(a), he strongly suggested that that was so and I think with the greatest respect, that his reasoning in suggesting that that is the position, is compelling. Accordingly, I approach this matter on the basis that finding, as I do, that the disability arose out of or in the course of a journey, it is only compensable, if it satisfies the criteria set forth in section 30(5) of the Act.

In my view the worker's reference to section 30(3) (a) does not really advance his case because the definition of `place of employment', so far as is relevant here, can only be satisfied if the worker was at a place at which he was `required to carry out the duties of his employment'.

Either way, the worker can only succeed if he can show that at the time of his injury, he was carrying out the duties of his employment.

I am inclined to the view, that the expression `duties of employment' is primarily concerned with the carrying out or performance of those activities that worker is actually employed to undertake, as opposed to those that are merely incidental to the relationship of employment.

In Karanicos (supra) Doyle C.J. spoke of the expression, in so far as it relates to a journey, in these terms:-

`Having said all that it seems to me that the focus of the expression `duties of employment' as a matter of ordinary language is a reference to the carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do. This is by no means a precise test, and has to be applied in a common sense and practical manner. But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker's job, complying with an instruction from the employer given by the employer in the exercise of control as employer, or doing something reasonably incidental to one of those things. It is also necessary to view the journey in context. By that I mean one should not look at the journey in isolation but should consider what preceded it and what was to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in that context.'

I think it is clear from this, and the later decision of Brophy (supra) that the notion `carrying out duties of employment' is a narrower concept than `arising out of or in the course of employment' For these reasons, it is my view, that notwithstanding my opinion that the worker's injury arose out of or in the course of his employment, that that is not sufficient for him to succeed.

But that said, I think on the facts in this case the circumstances of the worker's injury satisfies that more stringent test. The evidence clearly establishes and I find, that one of the worker's duties to his employer, that is to say, one of the activities that he was employed to undertake, was to make available to the employer, a motor vehicle, for its use during the course of the working day.

It is implicit, that the worker would make the vehicle available for the employer by driving it and parking it at a place proximate to the employer's premises, so that it would be convenient for the employer to use. It is scarcely surprising that the employer secured a parking space for the vehicle close to its premises. Ms. Carabelas attempted to make something of the fact that the worker was not obliged by the terms of his employment to use that parking space. In my view, that is not to the point. What is important, is that the employer provided that parking space for the purpose of and in the expectation of the worker discharging one of the duties of his employment, namely to bring his motor vehicle to work so that it could be used in the course of the employer's business. In my view, in driving the motor vehicle to work, the worker was discharging the duties of his employment.

It is true that in undertaking the journey on the day of the accident, the worker was proceeding from his home to his place of employment and in that sense he was fulfilling a private purpose. But I think what distinguishes this case from the decision of Brophy is that here, the worker was compelled by the terms of his employment, to drive his motor vehicle to work. Had he come to work by some other means and did not have his vehicle available for the employer's use, the evidence compels a finding that the employer could have legitimately complained that the worker had failed to discharge one of the duties of his employment

Accordingly, in my view, the worker satisfies the necessary pre-requisites to establish that his injury occurred in compensable circumstances. I therefore set aside the determination of the respondent dated 2 May 1997 and determine in lieu thereof, that the worker is entitled to be paid compensation pursuant to the Act, in respect of the disability that he sustained on 20 March 1997.

The parties have not addressed me as to the issue of quantum. I therefore adjourn further consideration of this judicial determination to enable the parties to reach agreement on that issue, or in default of their agreement make application before me to have the matter relisted to deal with those issues.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.