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[2001] NSWCC 64
appellant. Appeal allowed; award of Hogg C dated 19 November 1999 set aside; matter remitted to Hogg C for determination according to law of whether the injury arose out of or in the course of employment and...
A young welder with a day off rode his new motorbike for fun, came back, stopped in his driveway, then decided on the spur of the moment to ride to work to see if he was needed the next day and to load a truck. He was badly injured on the way. The first judge said this counted as a work journey starting from home and gave him compensation. On appeal Neilson J ruled that the evidence did not prove he had actually crossed back onto his own land before starting the work trip. Stopping in a 'driveway' could just mean stopping on the public side of the property line, and the worker had not given enough detail (no photos, no plan, no description of the gates or fence) to prove he had crossed the legal boundary required by the Act. Because the law places the burden on the worker to prove every element, ambiguity meant he lost. The appeal succeeded, the award was cancelled, and other questions about whether the injury arose in the course of employment were sent back for fresh decision.
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On 21 March 1997 Edward Pickwell, then aged 25 and employed for approximately ten years by Cotswold Australia Pty Limited as a fitter, machinist and welder, was enjoying a rostered flexi day. The previous evening he had taken delivery of a second-hand motorcycle at his shared house at 7A King Street, Campbelltown. The following afternoon, at about 1 pm, he received a telephone call from the employer's production manager, Mr Eamon Tierney, indicating there might be an "onsite job" the next day and that Tierney would telephone again. Rather than wait at home, Pickwell decided to test the new motorcycle on fire trails at Wedderburn, some 15 kilometres south of his residence. The employer's premises at Minto lay a shorter distance to the north.
After completing the recreational ride Pickwell returned toward Campbelltown. He gave evidence that he "headed back towards home", "pulled up in the driveway" at approximately 3.30 pm, realised he had not heard further from Tierney, and decided to ride directly to the employer's premises. He was still wearing motorcycle gear and did not enter the house because it was locked, the gates were locked and the alarm was on. While travelling along a canal containing Bow Bowing Creek toward Essex Street, Minto, he was thrown from the motorcycle and suffered a comminuted compression fracture of the L1 vertebra with spinal cord injury, rendering him paraplegic.
Before Hogg C, Pickwell advanced three alternative bases of entitlement: (i) that he was injured on a periodic journey from his place of abode to his place of employment within s 10(3)(a) of the Workers Compensation Act 1987, (ii) that after returning home a fresh journey commenced when he left the boundary of the property, and (iii) that the injury otherwise arose out of or in the course of his employment. Hogg C accepted the journey claim, found that Pickwell had returned to and crossed back onto his property, and awarded weekly compensation from 21 March 1997 to date and continuing together with lump sum awards under ss 66 and 67. Tentative views were expressed that the injury also arose in the course of employment and that employment was a substantial contributing factor, but these were not determined.
Cotswold appealed under s 34A of the Compensation Court Act 1984. The appeal was heard by Neilson J on 23 and 24 March 2000. By the time judgment was delivered on 18 May 2001, Neilson J had the benefit of three recent authorities: Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 697, Athval Management Pty Ltd v Doherty (2000) 20 NSWCCR 687 and the High Court's decision in Vetter v Lake Macquarie City Council [2001] HCA 12. The employer advanced two grounds: first, that there was no evidence capable of supporting a finding that Pickwell had crossed the boundary of his property on return from Wedderburn before setting off again; second, that the journey was not a "periodic journey" within the statutory language. Neilson J upheld the first ground, found error of law in the Commissioner's approach to both the facts and the construction of s 10(4), allowed the appeal, set aside the award and remitted the outstanding issues for redetermination according to law.
Neilson J's reasoning proceeds in two distinct stages. The primary and dispositive stage concerns the sufficiency of evidence to establish that the journey to the employer's premises commenced at the statutory boundary. The secondary stage addresses the proper construction of ss 10(3) and (4).
On the evidentiary question, Neilson J began by accepting that Hogg C was entitled to find that Pickwell "pulled up in the driveway" at about 3.30 pm. That finding was supported by Pickwell's oral evidence, including his cross-examination reaffirmation that he had stopped in the driveway and his explanation that his earlier statement to an investigator had omitted detail but was not inconsistent. However, the critical issue was not whether Pickwell had stopped, but whether that stop occurred after he had crossed the boundary of the land on which his house stood. At [13] Neilson J carefully dissected the ordinary meaning of "driveway". In Australian urban settings a driveway commonly includes the paved or gravelled strip running from the carriageway across the footpath and nature strip to the property boundary. "Pulling up in the driveway" can therefore describe stopping on public land. The Commissioner's finding left open three possibilities: that Pickwell remained on public land, that he straddled the boundary, or that he had crossed wholly onto private land. Only the third possibility would satisfy s 10(4).
Applying the test drawn from Holloway v McFeeters (1956) 94 CLR 470 at 480-481 and the Court of Appeal's analysis in Ambulance Service of NSW v Daniel, Neilson J asked which of the three inferences had "some greater degree of likelihood". He concluded that the evidence did not elevate any one possibility above the others. The reference to locked gates was neutral at best because their location was never established; they might have been at the street boundary or further inside the property. No sketch plan, photograph or descriptive evidence of the front fence, gates or exact stopping point was tendered. In the absence of such material the worker had failed to discharge the onus that the Act and ordinary principles of proof placed upon him.
Neilson J was particularly critical of the Commissioner's syllogism at [18]-[19]: a driveway is a private road; the worker pulled up in the driveway; therefore he was on private land. The premise was false. The Shorter Oxford English Dictionary and Macquarie Dictionary definitions show that "driveway" is not synonymous with private land. The Commissioner had misdirected himself in law on the meaning of the very word on which the finding turned. Further, the Commissioner's reliance on Johns J's second-reading speech reference in Calvert v Soden to "the worker's own … driveway" was misplaced; that passage referred to the portion of the driveway inside the boundary, not the public approach to it.
At [19] the judgment notes that it would have been simple to lead the necessary evidence: a description of the property, identification of the front fence line, or a photograph marked by the worker. None was done either at first instance or on appeal. The Commissioner's finding therefore rested on nothing more than conjecture, inverting the onus by treating the employer's inability to disprove boundary crossing as affirmative proof by the worker. That constituted an error of law.
The alternative construction of s 10 advanced by senior counsel for the worker fared no better. The submission was that s 10(4) merely excludes injuries occurring inside the boundary but does not prevent a journey that begins inside the property from retaining its character as a journey from the place of abode. Neilson J rejected this at [35]-[37]. The statutory language is clear: only journeys that commence at the boundary are deemed to arise out of or in the course of employment. The worker's reading would render the boundary rule otiose and would permit workers to bypass entirely the doctrines of deviation and interruption. It was inconsistent with the legislative history set out in Calvert v Soden (which Neilson J expressly adopted) and with the structure of the Act as explained in Athval Management Pty Ltd v Doherty. The Commissioner had therefore erred in law on the construction point as well.
Having found error on the first ground, Neilson J allowed the appeal but, in deference to the arguments, went on to indicate that, had the boundary point been decided differently, he would have upheld the Commissioner's finding that the journey was a periodic one. The evidence that Pickwell was travelling to ascertain whether work was required and to load a truck if necessary fell within the reasoning of the High Court in Whiting v Brambles Industries Ltd. However, the judge expressed strong reservations about whether the injury could be found to arise out of or in the course of employment or to satisfy s 9A, citing the narrow category of cases in which journey injuries receive that characterisation. Those issues were therefore remitted.
Prior to the 1989 amendments the journey provisions distinguished between houses and flats. Under the original s 10(4) a worker living in a house commenced a journey when he left the front door of the building; a unit dweller commenced at the door of the unit. The 1989 amendment rationalised the position by providing that in both cases the journey commences or ends at the boundary of the land on which the dwelling stands. The second-reading speech made clear that employers were not to be liable for accidents on the worker's own front porch, garage or driveway because such locations did not involve the hazards of the journey.
Johns J in Calvert v Soden (1994) 10 NSWCCR 139 traced this history and concluded that the boundary rule had "legislated" earlier decisions such as Thornley v Sydney Waterfront Watchmen's Association and Bowden v Murdoch's Ltd into the statute. Neilson J expressly adopted that analysis at [17]. The law before Cotswold therefore required the worker to prove that the point at which injury occurred lay outside the boundary. What Cotswold added was an insistence on the quality of proof required. It is not enough to prove that the worker stopped somewhere near the house; the evidence must be capable of supporting the inference that the statutory boundary was crossed on the return leg before a fresh journey began. The decision emphasises that "driveway" evidence is inherently ambiguous and that the worker must adduce additional detail—photographs, plans or clear descriptive evidence—where the factual contest concerns the precise location of stopping.
After Cotswold the law is clearer on two points. First, the boundary rule is both a commencement rule and an exclusionary rule; it cannot be sidestepped by re-characterising the journey's "essential character". Second, in cases where a worker returns from a deviation and stops before setting off again, the evidentiary onus is strict. A bare assertion of having "arrived home" or "pulled up in the driveway" will rarely suffice. The decision also reinforces that the principles governing sufficiency of evidence for a party bearing the onus, as explained in Azzopardi and Daniel, apply with full force in journey claims.
At [13] Neilson J states: "Streets in this country are usually divided into both carriageways ('the road') and footways ('the path'). There is often also a verge or nature strip between the road and the path and/or between the path and the boundary of adjoining properties. Idiomatically 'driveway' is used to indicate that piece of land that leads from the carriageway to the garage or carport or parking area on the property adjoining the street. 'Driveway' includes that part of the access to the property which is still on the public street, but not part of the carriageway."
Plain English: The word "driveway" that everyone uses in everyday speech can include the bit of your driveway that is still on the council's land before you actually reach your fence. Simply saying you stopped in the driveway does not automatically prove you were on your own private land.
At [19]: "Whilst the facts of each case will define such boundaries, there is nothing to indicate in this present matter that the driveway at Mr Pickwell's place of abode is anything other than a normal driveway which, on the balance of probabilities, would be within the boundary of his place of abode."
This is the Commissioner's reasoning that Neilson J ultimately rejects. The Commissioner assumed a normal suburban driveway lies inside the boundary. Neilson J points out that the assumption is unsafe without evidence.
At [27]: "The use of the word 'driveway' by the worker cannot be construed per se as a statement that he was within the boundaries of his place of abode. Further evidence is required to explain on which part of the driveway the worker was when he pulled up. There is no such evidence."
Plain English: Just because the worker said "driveway" does not prove he had crossed his property line. He needed to give more detail—where exactly he stopped, where the gates and fence were. Because he did not, the claim fails.
At [33]: "I must conclude that the evidence was incapable of supporting the finding that the worker had crossed over onto his property on his return from Wedderburn. It follows that the worker has failed to establish that 'conduct said to constitute a journey', to use the formulation of Heydon JA in Athval Management Pty Ltd v Doherty, commenced at the boundary of his place of abode at the time alleged."
This is the ratio. The evidence simply could not justify the Commissioner's finding. Because the journey did not start at the legal starting line required by the Act, the journey claim could not succeed.
At [36]: "The Act fixes the point of commencement of the journey. The argument proffered by Mr Joseph SC, unsupported by authority, leads to the conclusion that section 10(3)(a) should mean 'the daily or periodic journeys to or from the workers place of employment' and that section 10(4) should be construed as 'For the purposes of this Act injury received within the boundaries of the workers place of abode is not an injury received on a journey within section 10(3)(a).' However the Act does not say either of those things, nor does it mean either of them."
Plain English: The Act is deliberate. It does not let a worker start his journey wherever he likes and then claim the whole trip is protected. The boundary is the fixed starting gate. Any other reading would undermine the whole scheme.
Cotswold will be triggered whenever a worker seeks to rely on the s 10 journey provisions after a break in travel that involves returning to the vicinity of the residence. Typical triggers include:
The precedent emphasises that the worker must lead positive evidence—photographs marked during testimony, a hand-drawn plan showing the fence line and stopping point, or clear descriptive evidence of passing a front gate or fence. Where the property is a free-standing house with a driveway, the absence of such evidence will usually be fatal. The decision is not limited to motorcycle cases; it applies equally to cars, bicycles or pedestrians. It is especially relevant where the injury occurs a short distance from the residence after a recreational or personal interlude, and the employer puts the boundary issue squarely in play.
The judgment also confirms that the "periodic journey" concept is broad enough to cover travel to ascertain whether casual or emergency work is required and to prepare equipment if it is. That aspect of the reasoning will assist workers in "on-call" or flexible-roster situations provided they can first surmount the boundary hurdle.
Although the judgment itself cannot cite its own subsequent treatment, its internal reasoning demonstrates how it builds upon and applies earlier authorities. Neilson J carefully followed the evidentiary principles articulated in Ambulance Service of NSW v Daniel at [53]-[64], adopting the distinction between "no evidence" and "insufficient evidence" when the onus-bearer is the applicant. The decision faithfully applies the High Court's approach in Holloway v McFeeters to the drawing of inferences, requiring the worker's evidence to render one inference more probable than others.
The judgment's treatment of Calvert v Soden is nuanced. Neilson J adopts Johns J's legislative history but corrects the Commissioner's application of it. The distinction drawn between the public and private portions of a driveway is now embedded in the jurisprudence as an orthodox reading of the second-reading speech. Similarly, the adoption of Heydon JA's formulation in Athval Management Pty Ltd v Doherty ("conduct said to constitute a journey") has become the standard way of framing the commencement question.
On the construction point, Neilson J's rejection of the "character of the journey" submission as inconsistent with the statutory text has reinforced the bright-line nature of the boundary rule. Courts thereafter have continued to treat s 10(4) as fixing an objective point rather than merely excluding intra-boundary injuries. The obiter discussion of Whiting v Brambles Industries Ltd has been used to support the proposition that a journey to check whether work is available can still be a periodic journey, illustrating the breadth of the "periodic" concept when the boundary issue is separately satisfied.
The remand directions concerning s 4 and s 9A have served as a reminder that even when a journey is established, the separate tests for arising out of or in the course of employment and substantial contributing factor remain narrow. The judgment's caution against over-extension of authorities such as Hatzimanolis and Hooke v Rolfe has guided later tribunals to keep journey cases within their proper doctrinal confines.
Despite the clarity brought to the boundary and evidentiary issues, several questions were left for the Commissioner on remittal and remain live in analogous cases. First, can a journey that begins as a recreational ride, is interrupted by a return to the residence, and then continues toward work ever be characterised as a single journey from the original departure point? The judgment notes that no alternative allegation of an uninterrupted journey with non-injurious deviation was advanced, leaving that route closed on the facts but open in principle.
Second, the precise scope of compensable "periodic journeys" when the worker is not on a fixed roster remains unsettled. Neilson J accepted that travel to ascertain availability of casual work can qualify, but the outer limits—particularly when the employer has not expressly requested attendance—were not finally determined.
Third, the relationship between s 10 and the definitions in s 4 continues to generate difficulty. The judgment expresses scepticism that an ordinary journey to check on possible work could arise out of or in the course of employment, citing the early English authorities and more recent New South Wales decisions. Exactly when a journey to work crosses into the "narrow category" of cases in which the journey itself is part of the employment is left for future adjudication.
Fourth, the application of s 9A to facts falling outside s 10 remains open. The Commissioner's tentative view that a reasonable expectation of having to load a truck might create a substantial contributing factor was noted but not endorsed. Neilson J observed that Parliament exempted s 10 journeys from s 9A precisely because causal connection is ordinarily absent; the strength of that causal requirement when s 10 is unavailable is still being worked through.
Finally, the practical evidentiary burden identified in Cotswold raises the question whether workers' solicitors must now obtain property plans or photographs in every case where a return to the residence is alleged. The judgment suggests that such evidence "could easily have been led". Whether that expectation has hardened into a de facto requirement, or whether oral evidence alone can suffice in clear-cut cases, remains a matter of forensic judgment.
These open questions ensure that Cotswold, while resolving the immediate evidentiary controversy, continues to shape litigation at the intersection of personal recreation, flexible working arrangements and the strict boundary rule.
CITATION : Cotswold Australia Pty Limited v Pickwell [2001] NSWCC 64 Cotswold Australia Pty Limited PARTIES : v Edward Pickwell MATTER NUMBER(S) : 47868/1 of 1998 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23/03/00, 24/03/00 DATE OF JUDGMENT: 05/18/2001
FOR APPLICANT: Mr L King SC with Mr C S Robertson instructed by Vardanega Roberts appeared for the claimant LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Joseph SC with Mr R Goodridge instructed by Firths appeared for the opponent.
JUDGMENT:
First issue: Evidence to establish that the worker crossed over the boundary of his property on his return from Wedderburn 10. The evidence on this issue was cited by the Commissioner in his reasons and needs to be again cited here. In chief, this was said:
Q. So you went out to these fire trails, you said to Wedderburn, and what did you do after you finished out there. A ---I headed back towards home, and then as I pulled up in the driveway I thought, like wow, I haven't heard from him. Could've - many reasons, maybe out of range, couldn't hear it over the bike, so I thought instead - Q. What time was that do you think you arrived - A---Probably about 3.30. COMMISSIONER Q. You actually arrived home. A---Yes, pulled up. MR JOSEPH Q. So you have arrived home at 3.30. You are in what gear. A---I'm in dirty work - not work gear - dirty bike gear with riding boots, helmet, jackets. Q. So you arrived home and you realised you had not heard from him, right. A. Yes. Q. What did you then decide to do. A---I decided like just to head straight down there to find out - Q. Down where. A---Down to work to find out if the job was on, get ready to load the truck and find out what's involved in it. Q. Why did you decide to head straight down on the bike rather than, say, make a phone call. A. Saves getting off, going inside. I was in work boots. The house was locked up, gates were locked up, alarms on, so I just decided to head down.
…What I am asking you though is, can you for instance - are you absolutely certain that you went to the house before you decided to go back to the factory. A ---Yes. Q. Absolutely certain about that. A---Yes. Q. You did not just come to you while you were riding back and you did not stop at all and you kept going. A---No. Q. Are you certain about that too. A---Yes I pulled up in the driveway and that's when I thought about it all. Q. That is when you thought about it all. A---Yes. Q. You have of course been asked to give a couple of statements about this, have you not. A. Only one. DISCUSSION MR NOCK Q. Just have a look at this document first of all and have a look at signatures at the bottom. Just make sure that you have seen that document before and that you recognise the signature. Is that right. A. Yes. Q. That is the statement you gave in August of last year about this accident to an investigator. Is that right. A---Yes. Q. Just looking there you were asked by the investigator to give the circumstances of the accident, were you not. A---Yes I was asked, yes. Q. You were asked to tell him what had actually happened. Is that right. A---(No Audible Response) Q. Would you have a look at paragraph 3. Have a look there and I suggest to you you said this. "I went for a ride on my motor bike to another suburb called Wedderburn where there are fire trials and tracks through the scrub land. When I finished out there I headed back towards home. Then I remember about work so I decided to head down to work to see about the job, if I had to do it and also to load the truck so that I wouldn't have to come in early in the morning to do it." Do you see that. Do you see all that. A---Yes. Q. Do you agree with me you said nothing there about returning to your house and about deciding to leave your house to head to work. Is that right. A---That's what it reads there, but what I actually did was different. Q. So the statement is wrong. A---Yes to me these statements were more like answering questions to the bloke. Q. When you received this statement in its typed form, did you read it. A---Yes. Q. After you read it, you signed it. Is that right. You cannot just shake your head. You have got to say yes because it is being recorded. You do not have any problem reading, do you Mr Pickwell. A. No. Q. You understood what was in the statement. A---Yes until now. Q. Until now but now you say there is a bit more to it. Is that right. A---Yes I just -everything not worded in here - Q. Everything is not worded in there - A---How much ............. 11. I have previously pointed out that the evidence discloses that the worker's place of abode was a "house" and that it was in or very close to the CBD of Campbelltown. It can now also be seen that there was a driveway and that there were gates. Where the gates were, the evidence does not disclose. They may have been on the boundary of the property or they may have been in a fence dividing the front yard of the property from the backyard. There is no description of the street or of the driveway. 12. After reciting the evidence I have just quoted the Commissioner said: 11. Whilst the respondent might direct me to some possible variety of interpretations in these accounts, particularly in relation to the question as to whether Mr Pickwell actually pulled in to his driveway, I am satisfied on the balance of probabilities that the applicant did, in fact, ... "pull (ed) up in the driveway...". I accept Mr Pickwell's evidence given in the witness box to the Court and indeed I should indicate at this stage that I considered him to be a witness of truth who attempted at all times to be frank and accurate in the giving of his evidence. I consider it entirely feasible that the answers given to the investigator, and the consequent statement, and the evidence about pulling up in the driveway may not necessarily have been inconsistent. There is simply more detail in one version and indeed Mr Nock's questions are put on that very basis. 12. The respondent, in any event, seized upon the "driveway" issue. Mr Nock submitted that even if one was to accept that Mr Pickwell pulled into the driveway, that fact should not be looked at in isolation as determining any issue of "boundary" in the applicant's favour. He contends that the Court must have regard to other relevant evidence on this point and in particular to Mr Pickwell's evidence that ... "the gates were locked up ...". With that evidence in mind Mr Nock made the following submission; Commissioner, without any further evidence the only inference that you can draw from that is that the gates to the property were shut and that the applicant never crossed the boundary of the land without, as is required to under section 10 and you would be well aware Commissioner of the long experience of senior counsel acting for the applicant in this regard and that if it were thought that the truth of this matter was that he entered across the boundary then one would expect there to have been an attempt at least to establish that he entered the property and not to leave it open to the inference in the way that Mr Joseph may suggest applies. We would suggest that it would be contrary to any inference to draw an inference contrary to the evidence, to draw any inference that he had actually crossed the boundary. Now it is as simple as that Commissioner and if the applicant had entered the premises and gone inside or gone into the driveway and up to his garage or whatever might be there we would have heard about it but he did not and we know the gate is locked. There is no attempt to identify which gates, where they were, anything, but that is the onus and it is a very strict onus because that is why the Act was amended to give clear indication to courts that the journey must commence at a particular point. It was to avoid all those cases that you have no doubt heard and heard over the years of people coming out of blocks of flats and premises and so forth and it was made specifically for that. 13. I am not convinced that the respondents submission is correct in this regard. It does not follow to conclude that Mr Pickwell had not crossed the boundary upon which his home was situated when he pulled up in the driveway...". Indeed by pulling up in the driveway, the contrary is suggested. It should be emphasised that it is the unchallenged evidence of the applicant that he pulled up in the driveway. The respondent's submission would, of course, have more merit had Mr Pickwell stopped in the street outside his house but he doesn't do that. He ... "pulls up in the driveway..." and on the balance of probabilities I would conclude that he was on the property upon which his place of abode was situated and had crossed the boundary of his property in reaching that point "in the driveway". Further detail discussion and reasoning in relation to this point follows later in these reasons. 14. The respondent contends however that other evidence, being the fact that the gates were locked, should lead to the conclusion that Mr Pickwell had not crossed the boundary. I cannot adopt the logic of that submission. There is absolutely no evidence as to where these gates were situated nor what gates were actually being referred to. I do not even know whether these gates were on or near the driveway or if they were, those gates could be anywhere on the driveway, I simply do not know. The only specific evidence on this point is that Mr Pickwell ...."pulled up in the driveway...". 15. Mr Joseph S.C. submitted that, based upon that evidence, the only direct evidence as to where Mr Pickwell pulled up, the Court would conclude that the applicant had crossed the necessary boundary to his property. Mr Joseph S.C. then supplemented that short and relevant submission with the following; I would submit you would infer not the area outside the boundary fence when one is referring to in the driveway. The fact that there are gates unless my friend identifies where these gates are which he never intended to do I would submit you would be satisfied that in the driveway is an - together with the evidence of having arrived home and getting off a bike that might well be within the boundaries of the home but it does not - in our submission it does not matter because 10(4) is not intended to exclude a case even of the type my friend says occurs here namely parks the car out in the street let us assume he goes inside, let us assume he does not go inside, does it really matter. He gets on the bike in the street and gets injured. Well my friend says he is not on a journey from his place of abode because he does not commence it at the boundary of his home. With respect it is just fanciful type of interpretation of 10(4). The 10(4) and 10(3) are different purposes, 10(3) is to get you to characterise the journey, 10(4) is simply to delete injuries for the purpose of the section that occur within the boundary of your home not to change the character of a journey that might start in the street and end up at the place of employment. 16. This broader submission requires some consideration of the meaning and intention of section 10, particularly subsections 3 and 4. In Calvert v Soden 10 NSWCCR 139, Johns J contemplated such meaning and intentions, particularly insofaras they related to the terms "place of abode" and "boundary", even though His Honour's reasons were focussed upon a comparative applicability of those terms to home units and houses. Despite the fact that his Honour was concentrating on that exercise, his reasons, nonetheless, are extremely helpful to the understanding of what is meant by those terms relevantly in the context of the "journey" provisions in general. Those reasons are as follows; The question of where the line was to be drawn between the place of abode and the journey has been the subject of litigation from the time of the earliest journey provisions. In Thornley v. Sydney Waterfront Watchmens's Association [1942] 16 WCR (NSW) 57 Moffitt J held that the "place of abode" was to be construed in the popular sense and while doing so it was all important to keep in mind the nature of the remedy proposed by the Act itself (see Wentworth Securities Ltd v. Jones [1980] AC 74 at 105-106 per Lord Diplock and Clarke v. Bailey (1993) 30 NSWLR 556 at 567). The applicant in that case lived in a block of units and was injured whilst he was inside the block although outside the particular unit where he resided. Moffitt J held that the worker was not injured on a journey between his place of abode and place of employment. What was significant in that judgment were the rights of the occupier which were inseparable from the conception of the complete dwelling place; for example the right to use the common property and the common facilities on the property. The applicant's flat stood with other flats with a common outer wall. These were held to be inseparable from the conception of a complete dwelling place and while he was in the exercise of any of these rights and still within the building, that is in the act of using the common entrance door, his Honour thought that he was still within his place of abode and could not then be said to be on a journey from his place of abode to his place of employment. Thornley's case was cited with approval by Street CJ in Bowden v. Murdoch's Ltd [1951] 25 WCR (NSW) 1. The circumstances were not unlike Thornley's case and the Court followed the decision in Thornley. Street CJ stated at 5:
"... In the present case I think it is clear that the Legislature had in mind the necessity of protecting a worker when he was on his journey, that is to say, when he was a traveller or wayfarer. In the most usual circumstances his journey, for this purpose, would commence when he first emerged into a place or a way used by members of the community at large as a thoroughfare, whether as of right or not, for the purpose of moving from place to place; but I am not suggesting that this definition is all-inclusive and that it would be sufficient for the determination of cases which might arise on other and different facts. But it is obvious that all the courts that have been called upon to consider the meaning and effect of the language used in section 7(1)(b) and (c) have always had in mind this general concept that a man does not become a traveller till he emerges from the premises which are his place of abode."
The Court adopted the reasoning of Perdriau J in Fleury v. The Select Cake Service [1950] 24 WCR (NSW) 15 that the applicant's journey commenced when he left the home building or it's precincts and in that regard was in agreement with the judgment of Moffitt J in Thornley . A further legislative change came in 1964. Section 7(1)(g) deemed a worker's journey to have commenced, in the event that he lived in a unit, at the front door of the particular unit where he lived or, in the event that he lived in a house, at the front door of the house. The Workers Compensation Act 1987, as it was originally enacted contained similar provisions to section 7(1)(g) of the 1926 Act. Section 10(4) of the 1987 Act as it was originally enacted provided that a worker who resided in a flat or home unit commenced his journey at the exit of that flat or home unit. In every other case where the worker's place of abode was within a building or structure a journey from a worker's place of abode commenced at the exit of that building or structure. Thus there was a distinction between workers who resided in home units and those who resided in houses. A journey from a home unit commenced at the front door of the unit whilst on the other hand a worker who resided at a house commenced his journey when he left the front door of the building itself. Had the provisions of section 10(4) remained unchanged the applicant obviously would have been entitled to an award of compensation. However the amendment to section 10(4) by the Workers Compensation (Amendment) Act 1989 stated that the place of abode is to include the boundary upon which the house or block of units is situated. If the mere words "place of abode" as they stood in the original section 7(1) commenced at the boundary upon which the premises were situated, the 1989 amendment to section 10(4) has legislated those decisions referred to above into the present Act. The second reading speech in Hansard on 21 November 1989, in so far as it can be used as assistance in determining the legislative intent, makes it clear at 12,928 that the provisions in accordance with the 1964 amendment were inappropriate as employers were not to be held liable for accidents that happened in places such as the worker's own front porch, garage or driveway. It was said that accidents of that nature were not related to the hazards of the journey. It is clear that the section as it now stands has rationalised the termination of journeys between normal residence such as private houses and flats. In both cases the termination of the journey is the boundary of the land upon which either the private house or the flat building stands. It is clear that once the boundary of the land has been crossed on which the flats were located the journey has either begun or ended. McGrath CJ in Anderson v. Thiess Contractors Pty Ltd, Compensation Court, No. 13475/91, 25 March 1993, unreported, concluded that there was no distinction to be made between the boundary of a block of home units and the boundary upon which a home is situated when consideration was to be given to the commencement or ending of a journey to or from a place of employment. As a result the artificiality that is to be observed in Williams v Ducon Condenser Ltd [1949] 23 WCR (NSW) 122 is again to be expected or assumed. In that case the applicant used her bicycle in journeying to and from work. On the day of injury she was returning home from work. The applicant lost control of her bicycle when it passed over an uneven surface outside the gate of her home and she received injuries by falling onto the driveway inside the gate. The Commission found that the injuries were received at the applicant's place of abode and not between her place of employment and place of abode and accordingly compensation was refused. 17. I am grateful to Johns J for such a helpful analysis of the authorities and legislative history and I adopt His Honour's reasons. With that in mind, I reiterate that it was more likely than not Mr Pickwell crossed into his place of abode when he ... "pulled up in the driveway...". It is more likely than not that Mr Pickwell goes onto the property upon which is situated his place of abode when he goes into the driveway. There is nothing in evidence to suggest anything other than this was a driveway 18. "Driveway" is defined in the Shorter Oxford English Dictionary as … "a private road, leading to a house, a drive…". The concept of "private" is interesting and conveys the impression that it is within an area that is private property or under private ownership or control. Either view would tend, in my view, to support proposition that it was within the area contemplated by the words "place of abode". Relevant to those observations, it is interesting to reiterate what was said by Johns J in Calvert at page 143; "The second Reading Speech in Hansard on 21 November 1989, in so far as it can be used as assistance in determining the legislative intent, makes it clear at 12,928 that the provisions in accordance with the 1964 amendment were inappropriate as employers were not to be held liable for accidents that happened in places such as the worker's own front porch, garage or driveway. It was said that accidents of that nature were not related to the hazards of the journey." 19. For those introducing the legislation it would seem that an area such as a driveway was considered to be within the boundaries of the place of abode. Whilst the facts of each case will define such boundaries, there is nothing to indicate in this present matter that the driveway at Mr Pickwell's place of abode is anything other than a normal driveway which, on the balance of probabilities, would be within the boundary of his place of abode. It would also seem logical to conclude that for those reasons, that had the injuries been sustained while he was in the driveway, it is unlikely that Mr Pickwell would have been entitled to benefits of the journey provisions and it would have been interesting to see what the respondent's submissions as to the status of the driveway would have been had that been the case. 20. Alternatively, it may also have been possible that where Mr Pickwell pulled up in the driveway, may well have been on the actual boundary of the place of abode and as subsection (4) only requires the journey to commence at the boundary, that interpretation of the facts would also entitle Mr Pickwell to the benefit of the journey provisions. 13. It is clear that the Commissioner accepted that the worker "pulled up in the driveway". There was clear evidence to support such a finding. But what does "driveway" mean? Streets in this country are usually divided into both carriageways ("the road") and footways ("the path"). There is often also a verge or nature strip between the road and the path and/or between the path and the boundary of adjoining properties. Idiomatically "driveway" is used to indicate that piece of land that leads from the carriageway to the garage or carport or parking area on the property adjoining the street. "Driveway" includes that part of the access to the property which is still on the public street, but not part of the carriageway. "Pulling up in the driveway" does not mean that one stops a vehicle within the boundary of one's own property. It can mean pulling up on that part of the driveway between the carriageway and the boundary. The householder's complaint that "there is a car parked across my driveway" does not mean that another has parked his vehicle on the householder's property but rather that the other has parked his vehicle on the carriageway preventing ingress to or egress from the driveway where it adjoins the carriageway ie still on the public street. 14. A number of possibilities arise from the finding that the worker "pulled up in his driveway". He may have been on that part of the driveway still on public land, he may have been straddling the boundary or he may have crossed it wholly so that he was within the boundary of the land on which his house stood. That the Commissioner was alive to there being a number of possibilities is clear from par [20] of his reasons, where he states that if the worker were "on the actual boundary" that would be sufficient for the worker to succeed. 15. In Holloway v McFeeters (1956) 94 CLR 470, Williams, Webb and Fullagar JJ said at 480-81: Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause "you need only circumstances raising a more probable inference in favour of what is alleged . . . where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687 . . . All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood". These passages are extracted from the unanimous judgment of this Court (Dixon J., as he then was, Williams, Webb, Fullagar and Kitto JJ.), in Bradshaw v. McEwans Pty. Ltd. 16. This raises the question in this case as to the which of the three possibilities I have given has "some greater degree of likelihood". 17. More recently, the Court of Appeal has discussed the issue of what evidence is sufficient to support a finding of fact. That decision is in Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 697 per Hodgson CJ in Eq at par [53] - [64]. Sheller and Beazley JJA agreed with his Honour in this regard. He said: 53 Mr Shore submitted that the question whether there was any evidence upon which the finding could be made was a question of law, and he relied on McPhee v Bennett Ltd (1934) 52 WN (NSW) 8 at 9. 54 Mr Hislop relied on Azzopardi, and on the following statement by Meagher JA in Coal & Allied at 225: But it must be emphasised that the question is a purely factual question, and when his Honour has answered in the affirmative, his Honour was making a finding of fact. That being so, this Court has no jurisdiction to embark on an analysis of its correctnes s or otherwise, and hence any challenge to it must fail in limine since the Court can only entertain appeals from the Commission on questions of law. 55 Mr Hislop submitted that it was very difficult to establish that there was no evidence: it did not matter that the evidence was scanty or implausible, or even that the decision was perverse: if there was any evidence at all on the point, there was no error of law. 56 In my opinion, Mr Hislop's submissions to some extent reflect a misunderstanding of what was decided in Azzopardi. In the main judgment in that case, that of Glass JA, a clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof. In the former situation, the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence, which if fully accepted could properly base the finding of fact. The distinction is made clear in the following passage from the judgment of Glass JA at 156: To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. 57 That very sharp distinction has not been stated so clearly in all the cases which followed Azzopardi. 58 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, the trial Judge found incapacity in favour of the worker up to a specified date, and thereafter found the worker "fit for all work". An appeal was brought on two grounds: firstly, that there was no evidence on which his Honour could have found as he did; and secondly, that his Honour failed to give any reasons for his conclusion. 59 In relation to the first ground of appeal, Kirby P at 253 - 4 referred to Azzopardi, and the view of the majority that "an error of fact finding would not be elevated to an error of law, if based on evidence open to the trial Judge, even if an appeal court were of the view that the decision on the facts was illogical, perverse or completely unreasonable". At 256, Kirby P rejected the argument that there was no evidence at all to sustain the trial Judge's finding. 60 It is to be noted that Kirby P did not speak in terms of evidence sufficient to base a finding, but whether there was no evidence at all to sustain the finding. If his Honour thereby meant to say that, in circumstances where the onus of proof lay on the respondent, an appellant could not make out an error of law by showing that, although there was evidence relevant to the question, that evidence could not even if fully accepted properly support the finding, it would seem that what he said may be inconsistent with what Glass JA said in Azzopardi. 61 In the judgment of Mahoney JA in Soulemezis, at 264, his Honour pointed out that the onus was on the worker to prove incapacity at any relevant time. Accordingly, in my opinion, the error that had to be shown by the appellant worker in that case was an error in failing to be satisfied of a matter on which the appellant bore the onus of proof. Approached in that way, no question of sufficiency of evidence could arise, for the reasons discussed by Glass JA in Azzopardi; and so the statements of Kirby P were obiter in their application to cases where the appeal is against a finding in favour of the party bearing the onus of proof. 62 In Mafulu Pty Ltd v Mather, NSWCA, No. 594/87, 13 December 1988, unreported, a finding had been made that a company director was a worker. An appeal was brought on the basis that there was no evidence to sustain that finding. The Court of Appeal held that there was such evidence. Kirby P posed the question as being whether or not "there was no evidence at all to support a finding of fact made". Samuels JA held that there was "some evidence upon which the finding could rest". 63 Again, if the question posed by Kirby P is interpreted as asking whether or not there was any evidence at all relevant to the finding, then that is not consistent with Azzopardi. In my opinion, Kirby P's question, and the statement of Samuels JA, should be properly interpreted as indicating that the correct question, in relation to a matter where a finding has been made in favour of a person bearing the onus, is whether or not the finding could properly be made on the evidence, if fully accepted. It must be recalled that Azzopardi itself was a case where the finding challenged was a finding against the person bearing the onus. 64 Similarly, the passage quoted earlier from the judgment of Meagher JA in Coal & Allied, at 225, could be interpreted as suggesting that no question of sufficiency of evidence, as that term was used by Glass JA in Azzopardi, arises even where the finding appealed against is a finding in favour of a party bearing the onus of proof. For reasons I have given, I do not think that passage should be interpreted in that way. 18. The test here proposed is whether the evidence , if fully accepted, could properly base the finding of fact. The finding of fact here in question is not whether the worker had "pulled up in his driveway" but whether he had crossed the boundary of his own property. 19. I return to the Commissioner's reasons. In par [12] he sets out a submission by the employer, the essence of which is that the worker had failed to discharge the onus which lay upon him. At the commencement of par [13], he states that he is unable to accept the submission. He then says "It does not follow to conclude that Mr Pickwell had not crossed the boundary upon which his home was situated when he pulled up in the driveway". With the utmost respect, that appears to me to be inverting the onus of proof. The worker had the legal and evidentiary onus of establishing that his journey commenced at the boundary of the land on which his house was situated. That onus must be discharged by adducing appropriate evidence. The statement that the worker pulled up in the driveway is ambiguous: a number of possibilities arise. What makes it more likely that the worker had crossed the boundary of his land? Nothing this far quoted by the Commissioner. Yet it is at this stage that the Commissioner makes his finding that the worker "was on the property upon which his place of abode was situated and had crossed the boundary of his property in reaching that point in "the driveway". 20. In par [14] of his reasons the Commissioner rejects the contention of the employer that the fact that the gates were locked should lead to a positive conclusion that the worker had not crossed the boundary. Correctly, he pointed out that there was no evidence where the gates were. He again reiterates that the only specific evidence is that the worker pulled up in the driveway. On an evidentiary basis, the fact that there were locked gates, when the worker failed to adduce evidence of their situs in relation to the boundary of the land, speaks against a finding in the worker's favour. Even if the Commissioner did not take that view, it is not evidence to support a positive finding in favour of the worker. The Commissioner then quoted in par [15] the submission of Mr Joseph SC, for the worker, on that issue, which submission savours of an inversion of the onus of proof: "unless my friend identifies where these gates are." These considerations do not turn "driveway" into that part of the driveway within the boundaries of the land on which the worker's house was situated. 21. The Commissioner in par [16] quotes extensively from the decision of Johns J in Calvert v Soden (1994) 10 NSWCCR 139. In that case his Honour was not addressing the factual issue which the Commissioner had to address. In par [17] the Commissioner again makes the finding that the worker had gone "onto the property upon which is situated his place of abode when he goes into the driveway". He then said, quite correctly, that "there is nothing in evidence to suggest anything other than this was a driveway." But that statement again begs the question of what "driveway" means. 22. At the commencement of par [18] the Commissioner said: "Driveway" is defined in the Shorter Oxford English Dictionary as …"a private road leading to a house, a drive…". The concept of "private" is interesting and conveys the impression that it is within an area that is private property or under private ownership or control. Either view would tend, in my view, to support proposition [sic] that it was within the area contemplated by the words "place of abode". The Commissioner then quoted a passage from Calvert v Soden (1994) 10 NSWCCR 139 at 143B and then continued in par [19] which I have quoted above. 23. The reasoning of the Commissioner is paragraphs 18 and 19 appears to me to be reducible to a syllogism. That syllogism is: (a) A "Driveway" is on private land; (b) the worker pulled up in the driveway ergo the worker pulled up on private land ie within the boundaries of his place of abode. 24. The problem with this syllogism is that the premiss is false. The Commissioner misdirected himself in the opening sentence of par [18]. I have in par [13] above explained the idiomatic use of "driveway". "Driveway" is not defined as the Commissioner has stated. The Shorter Oxford English Dictionary 3ed with revised Addenda and Corrections (1978) gives the following meanings: "A way along which something is driven; a carriage drive." The Oxford English Dictionary 2ed 1989 provides the following primary meanings: "A way along which something is driven. (a) A course along which game are driven in hunting. (b) A road or way along which animals or vehicles are driven; a carriage drive. Also a private carriageway for a motor vehicle alongside, in front of, or leading to a house, garage, or other building; a drive." 25. The New Shorter Oxford English Dictionary 1993 provides the following meanings: "1. A passageway by which hay, grain etc, can be taken into a barn. 2. A course along which game is driven in hunting. 3. A road along which animals or vehicles are driven; spec a private road leading to a house, a drive. 4. A scenic highway. Canada This appears to be the work consulted by the Commissioner. "A private road leading to a house, a drive" is only one meaning of driveway, and a specific meaning as well. 26. The Macquarie Dictionary 3ed 1997 provides the following meanings: "1. a passageway along which vehicles may be driven especially outside a private house. 2. The area in front of a service station adjacent to the petrol pumps." 27. The use of the word "driveway" by the worker cannot be construed per se as a statement that he was within the boundaries of his place of abode. Further evidence is required to explain on which part of the driveway the worker was when he pulled up. There is no such evidence. 28. The Commissioner's reference to what fell from Johns J in Calvert does not assist. The "worker's own front porch, garage or driveway" means "the worker's own front porch, the worker's own garage or the worker's own driveway." It is not a reference by his Honour to that part of a driveway on public land. Furthermore, his Honour was only paraphrasing the Second Reading Speech for the Bill which became the Workers Compensation (Amendment) Act 1989. The relevant part of that speech should be considered. It makes the position clear that the "worker's own … driveway" was meant to cover that part of the driveway within the boundaries of the workers own land. It was not defining "driveway" in any particular sense. The Minister, Hon Mr J Fahey said at Hansard, 21 November 1989 p 12928.3: The bill will provide also that coverage on journeys between home and work starts and finishes at the boundary of the home property. Under the existing provisions, the cover exists up to the entrance of the dwelling - or, in the case of home units, the door of the unit. It is clearly not appropriate that employers be held liable for accidents that happen in places such as the worker's own front porch, garage or driveway. Accidents that occur in such areas are not related to the hazards of the journey. 29. The matters considered by the Commissioner do not in my view enable an inference to be drawn that when the worker said that "he pulled up in the driveway", he had crossed over the boundary of the land on which his place of abode was situated. Nothing cited by the Commissioner suggests that there was "some greater degree of likelihood" that he had done so. The finding of fact that the worker pulled up in his driveway (which was amply supported by evidence) could not properly base the finding of fact that the worker had crossed over the boundary of his own property. 30. Such evidence could easily have been led. The worker could have described his property and indicated that he passed the front fence of the property (if there were such a fence). He could have drawn a sketch plan, he could have tendered a photograph and have explained where he pulled up by reference to it. No attempt was made to do any such thing. No attempt was made to adduce any such evidence before me: cf Compensation Court Act 1984 s 43A(4). 31. During the course of addresses it appeared to me that an inference might be drawn that the worker would have stopped where he would normally park his vehicle on the property. However, on reflection it would not be proper for me to draw such inference because I am not the tribunal of fact. Furthermore, in light of the evidence of the "locked gates" and in light of the absence of evidence from the worker as to where he normally parked his vehicle, such inference could not be drawn. 32. I have also considered whether the worker's evidence in answer to a question from the Commissioner might give some greater degree of likelihood to the possibility that the worker crossed over the boundary of the property. The question and answer are: "Q. You actually arrived home? A. Yes, pulled up." This may be taken as an affirmation that the worker "actually arrived home." However, that statement is itself ambiguous. Of course, there could have been no ambiguity in the Commissioner's mind because he knew what he meant when he asked the question. However what is important is what the worker understood by the question. The concept of "arriving home" is a relative one. How often has one heard a weary international traveller say on arriving at Sydney Airport "it's good to be home", when his or her place of abode could be anywhere in the metropolis. Idiomatically "arriving home" can be used for arriving in one's city, town, suburb or street. One can arrive "home" to find one's driveway blocked by garbage and recycling bins left in it by Council workmen. One can arrive "home", stop the vehicle, alight, open the front gates, reenter the vehicle then drive across the boundary between the public street and one's private property. "Home" is sometimes used synonomously with "house". It is clear in the current matter that the worker did not enter his house. One ambiguous statement coupled with another ambiguous statement do not make it more likely that the worker had crossed the boundary of his property. 33. I must conclude that the evidence was incapable of supporting the finding that the worker had crossed over onto his property on his return from Wedderburn. It follows that the worker has failed to establish that "conduct said to constitute a journey", to use the formulation of Heydon JA in Athval Management Pty Ltd v Doherty (2000) 20 NSWCCR 687, commenced at the boundary of his place of abode at the time alleged. There was no alternative allegation made that the journey commenced when the worker left for Wedderburn and that although there was a deviation or interruption in the journey, the risk of injury was not increased thereby. The submission as to the construction of section 10(4) 34. Mr Joseph SC made a submission, in the alternative, to the Commissioner about the construction of s 10(4). It is summarised at Transcript 26 August 1998 p 12.4 thus: Your Honour what 10(4) is intending to do is to simply say that if you have an injury on a journey it has to be outside the boundary of the land which your place of abode is, that is it does not change, it does not change the character of the journey which you have to determine as to where physically you started the journey. I mean it simply seeks to delete from the journey provisions any injury that occurs at your place of abode. The Commissioner appears to have been enamoured of this submission. He said:
MMr L King SC with Mr C S Robertson instructed by Vardanega Roberts appeared for the claimant. Mr M Joseph SC with Mr R Goodridge instructed by Firths appeared for opponent.
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Cotswold Australia Pty Limited
Pickwell
(2001) 21 NSWCCR 711
(2000) 19 NSWCCR 697
(2000) 20 NSWCCR 687
(1993) 30 NSWLR 556
(1956) 94 CLR 470
(1987) 10 NSWLR 247
(1994) 10 NSWCCR 139
(1994) 10 NSWCCR 437
(2000) 48 NSWLR 240
(1996) 14 NSWCCR 16
(1998) 16 NSWCCR 493
(1986) 7 NSWLR 40
(1995) 12 NSWCCR 491
(1992) 173 CLR 473
(2000) 20 NSWCCR 76
Appeal allowed; award of Hogg C dated 19 November 1999 set aside; matter remitted to Hogg C for determination according to law of whether the injury arose out of or in the course of employment and whether employment was a substantial contributing factor; each party to pay its or his own costs of the appeal.