Curran v Wills Industries Pty Ltd [2000] SAWCT 36

3 On 6 November 1998 the applicant submitted a claim for compensation in respect of the disability. Her claim was rejected by the employer however on the basis that in its view the applicant's disability did not arise out of or in the course of her employment with it. In particular it was the employer's position that given the accident from which the disability resulted occurred prior to her reaching the Post Office it did not consider that she was:-

"... engaged in any duties of employment at the time of the accident. The purpose of your journey was simply to come to your normal place of work and you were driving in a direction that you would have normally have travelled to arrive at work."

"In addition, we consider that your accident does not fit within the criteria as set out in section 30 (5) of the Act in that:

(i) you were not carrying out any duties of employment at the time of the accident, and

(ii) there was no real or substantive connection between your employment and the accident."

5 The question before me for judicial determination (conciliation having failed and the matter having being referred to me for immediate judicial determination pursuant to s 92D of the Act) is whether the subject disability arising as it does in the course of a journey arose in the course of a journey:-

"... undertaken in the course of carrying out duties of employment ..." (s 30(5)(a) of the Act)

6 Whilst on the hearing a number of cases were cited in argument, in my view the matter falls to be decided in the light of two decisions of the Full Supreme Court in the matters of TransAdelaide v Karanicos (unreported 3 April 1996 JN S5536) and State of SA v Brophy (unreported 7 March 1997 JN S6046).

7 In discussing s 30(5)(a) in Karanicos Doyle CJ had this to say at 8 and 9:-

"I turn now to the question whether it can be said in the present case that the journey was undertaken by the worker in the course of carrying out duties of her employment. I think that the approach to be taken is broadly similar to that outlined by Barwick CJ in Danvers v Commissioner for Railways (NSW) (supra). The test is to be applied in a liberal and practical manner. The inquiry is not restricted to those things which a worker is literally or specifically required to do. The concept of duties of employment in my opinion extends beyond things which the employee is obliged to do. I also consider that one is entitled to and obliged to take into account contemporary conditions and contemporary understandings of the concept of duties of employment. I consider that the following remarks of Dixon J in Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29 are apposite:

`... As the test is not, and could not be, whether the employee was obliged to act as he was doing when the accident occurred, the inclusion of things arising out of the actual performance of his duty was, no doubt, inevitable, but, as a result, the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of employment.'

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 its 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 going to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in context."

8 In Brophy a sergeant of police wearing his police uniform was involved in an accident and suffered injury whilst riding a police issue motor cycle from his place of employment to his home at the end of his normal working day. He was permitted to ride the motor cycle home although there were restrictions imposed upon him "inter alia" in relation to the route by which he travelled and the time which he took. Although off duty if he observed an occasion calling for the exercise of the powers of a police officer he was expected to and under a duty to do so. When the relevant accident happened he was making his own way home and not dealing with any matter that called for the exercise of his powers or authority as a member of the police force although he had exercised such powers in the past.

9 In dealing with the argument that his journey was undertaken in the course of carrying out duties of employment the learned Chief Justice had this to say at 9 of his reasons:-

"Section 30(5)(a) requires that the journey be undertaken in the course of carrying out duties of employment. To my mind it is unclear whether that means that the journey must begin or be initiated in the course of carrying out duties of employment, or whether it is a reference to the character of the journey as it unfolds. In the present case, in my opinion, the journey was not undertaken in the sense of begun or commenced in the course of carrying out duties of employment. It was a journey that commenced for a private purpose, travelling from the place of employment to the worker's home. Nor did anything happen in the course of the journey that altered its private or non-employment related aspect."

10 Later having adhered to the conclusion he expressed in Karanicos in relation to s 30(5)(a) cited earlier in these reasons the learned Chief Justice said at 10:-

"Making what is, I hope, a commonsense and practical judgment, I do not consider that it can be said that in the course of that journey the worker was doing anything that he was employed to do, even though the occasion to do so might arise at any moment."

11 In my view there can be no argument that the collection of mail by the worker on her journey to work was part of the duties of her employment within the meaning of that expression canvassed by Doyle CJ in Karanicos. The question then remains whether the worker's journey was undertaken in the course of carrying out duties of employment. In my respectful view it is artificial to reduce the journey to component parts as was suggested by counsel for the respondent Mr Walsh, namely that the worker "would not have commenced to carry out duties of employment until the collection of the mail and its onwards carriage to work or, at best the protection would be extended backwards to where she would have diverged from the route she otherwise would have taken to work had she not been collecting the mail"; written submissions of respondent par 7.

12 Whilst I acknowledge that some support for the submission of Mr Walsh can be gleaned from some of the older cases and particular Evans v Post Master General (1925) 17 BWCC 151 that case was decided in a different statutory context. Moreover, I must be mindful that although "it was Parliament's intention to restrict the scope of the employment of a worker" (Karanicos 5) in journey situations the test is to be applied in a "liberal and practical manner ... [and that I am] ... entitled to and obliged to take into account contemporary conditions and contemporary understanding of the concept of duties of employment"; Karanicos 8. Moreover, the journey must be viewed in context (Karanicos 9) and a commonsense and practical judgment made; Brophy 10.

13 In the circumstances it seems to me that in this case the journey had a dual purpose namely delivery of the worker to her workplace and the collection by her of the employer's mail for delivery at that same destination. Whilst there may have been benefits to the applicant in this arrangement there was also a benefit to the employer namely the collection of its mail presumably in a cost effective way. On the material before me it is clear that the applicant was obliged to collect the mail and if she did not do so no doubt would be open to censure by the employer. Clearly, it seems to me, the worker (to borrow the words of Doyle CJ in Karanicos) in undertaking the journey was performing her job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things. Bearing all relevant considerations in mind and viewing the journey in context I am led to the conclusion that in the circumstances of this case the applicant's journey was undertaken in the course of carrying out the duties of her employment although it also had the effect of transporting her to her place of work.

14 In the circumstances I hold that the determination of the employer should be set aside and in lieu thereof there should be a determination that her disability arose whilst in the course of a journey undertaken in the course of carrying out the duties of her employment and as such she is entitled to compensation in respect thereof.

15 I order accordingly. I will hear the parties as to any ancillary matters should it be necessary.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act 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.