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[2007] SAWCT 52
General information, not legal advice.
Workers Compensation Tribunal (SA)
2007-10-24
Mr J, Couaig DP
Original judgment source is linked above.
1 I agree for the reasons expressed by the other members of the bench that the appeal should be dismissed. I add a few brief observations of my own.
2 In TransAdelaide v Karanicos[1] the learned Chief Justice noted that in reformulating s 30 of the Act "Parliament chose to take a more restrictive approach than had previously been taken to the well known concept of a journey injury."
3 Consistent with this, it would be an unacceptable extension of the concept "carrying out duties of employment" to hold that the mere fact of taking work home is sufficient to bring a journey within the ambit of the reformulated s 30.
•
Mr Wright was employed as a teacher and the nature of that occupation carries with it an expectation that work will be undertaken outside of school hours.
•
Mr Wright was expected to and intended to work outside of school hours on the day of his accident.
•
It was not a matter of personal convenience for Mr Wright to do that work away from school. He had no choice but to leave the school premises.
•
Mr Wright had an established pattern of performing outside of school hours work at his home in a designated area.
•
When undertaking the journey from school to home, Mr Wright was carrying year 11 and 12 tests and assignments. These were important documents. He owed a duty of care to his employer and to his students to ensure that these materials were securely transported.
5 It is trite to say it, but each case depends upon its own facts and here, the subtraction of any one of these points may have led to a contrary conclusion. The sum of them, however, justified a conclusion that in driving home from school Mr Wright was carrying out his duties of employment.
McCOUAIG DP:
6 At about 6.00 pm on 15 March 2005 the respondent worker, a school teacher, was driving home from school when his car ran off the road and hit a tree. He suffered a closed head injury and now has no memory of the accident.
7 He claimed workers compensation. The Department of Education and Children's Services rejected his claim.
8 The dispute ultimately proceeded to judicial determination in March 2006. The agreed issues in dispute were:-
(1) Whether the worker undertook that journey in the course of carrying out duties of employment pursuant to section 30(5)(a) of the Workers Rehabilitation and Compensation Act 1986.
(2) Whether there was a real and substantial connection between the employment and his accident pursuant to s 30(5)(b) of the Act.
9 No oral evidence was given at the trial. Statements were tendered from the worker, his wife, the school principal Ms Rusk and the school's mathematics coordinator Ms Fischer.
10 The learned Deputy President determined that the worker had been carrying out the duties of his employment as he drove home on the night of his accident, thereby satisfying the requirements of s 30(5)(a). She found it unnecessary to determine whether there was a real and substantial connection between the worker's employment and the accident pursuant to s 30(5)(b).
Consideration
11 The first issue before the learned Deputy President was whether the worker's journey home that evening was undertaken by him in the course of carrying out his duties of employment within s 30(5)(a).
12 The issue is complicated by the dearth of definitive judicial pronouncement on the meaning of "duties of employment" in this context.
13 Doyle CJ, with whom Millhouse and Williams JJ agreed, said in Karanicos that the concept "duties of employment" in s 30(5)(a) extended beyond things which the employee is obliged to do and included 'the performance of an activity which is related to that which the worker was employed to do' and the doing of something 'reasonably incidental' to the worker performing his job or complying with an instruction from the employer in the exercise of its control as employer.
14 Although Doyle CJ in both Karanicos and State of South Australia v Brophy[2] observed that the expression "duties of employment" is a narrower concept than "in the course of employment", it is not easy to reconcile that observation with his adaptation of prior judicial commentary concerning the concept 'in the course of employment' as constituting the criteria for 'duties of employment'.
15 The workers' journeys in Karaniois and Brophy were both found to be neither in the course of employment nor undertaken in the course of carrying out duties of employment. The same reasons were proffered for the two findings in each case. That is to say, no different test or criteria was applied to determine the compensability of the journey under either heading. Doyle CJ in Karanicos left open that:-
"...there might be cases in which a given set of facts was seen to fall within subsection (2)(a) but not within subsection (5)(a), and when that occurs it will be necessary to decide upon the relationship between the two."
16 It might be thought that Parliament used the words that it did in s 30(5)(a) purposefully and that it intended the application of those words to be narrower in scope than had s 30(5)(a) been written: "the journey is undertaken in the course of employment".
17 As the Full Bench of the Tribunal noted in Rapson v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (F Westphal Nominees Pty Ltd)[3], the legal issues raised by s 30(5), and s 30(5)(a) in particular, have troubled the Tribunal for some time. Unfortunately, the Full Bench of the Supreme Court did not provide much enlightenment when it delivered its judgment in Rapson v WorkCover Corporation[4] on a case stated pursuant to s 86A of the Act earlier this year.
18 For the time being, the Tribunal is bound to apply the law in relation to s 30(5)(a) as it was espoused by Doyle CJ in Karanicos (which was approved and applied in Brophy and also by the Full Bench of the Supreme Court of South Australia in CSR Limited v McCourt[5]) in the following terms:-
"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 the 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."
19 Although it is unclear for what legal principle the learned Deputy President cited the Tribunal decisions of Rowberry and Owen under the heading "The law to be applied", I think it is sufficiently clear that the question she posed for herself, and determined in favour of the worker, was that posed by Doyle CJ in the aforementioned passage from Karanicos: see para 14 of the learned Deputy President's reasons for decision.
20 Contrary to the submission of Mr Lines before us, I do not think that the learned Deputy President's ultimate conclusion was founded on any implicit finding that the journey was a journey between places of employment and by reason of that fact alone a journey undertaken in the course of carrying out duties of employment.
21 Whilst the learned Deputy President's process of reasoning might have been better expressed, I think that in finding that the worker's journey home was incidental to his planned work later that night, the learned Deputy President was answering in the affirmative the question posed by Doyle CJ as to whether the journey was reasonably incidental to the worker performing his job or reasonably incidental to him complying with an instruction from his employer to continue his work away from the school.
22 It follows from Doyle CJ's discussion of the topic in both Karanicos and Brophy that the factual matrix has to be considered as a whole and that whilst the addition or subtraction of one factor in a given situation might well tip the balance, the addition or subtraction of the same factor in another situation might well make no difference.
23 Sir John Donaldson MR made the point in Nacollas v Insurance Officer[6]:-
"We cannot over emphasise the importance of looking at the factual picture as a whole and rejecting any approach based on the fallacious concept that any one factor is conclusive. The addition or subtraction of one factor in a given situation may well tip the balance. In another, the addition or subtraction of the same factor may well make no difference. We appreciate that it would assist if we could lay down rules or even guidelines. However, there are no rules, other than which is contained in the statute: if, looking at the factual picture, the claimant suffered the accident whilst in the course of his employment, he is eligible for benefit, assuming all other conditions are satisfied. As to guidelines, it would be possible to point to material factors: was he being paid for what he was doing? Was it the employer's car? If not, was he paid mileage allowance? Was it of any concern to the employer that he was where he was? Had he a fixed place of work and was he going to it? Had he more than one fixed place of work and was he travelling between them? But any such list would mislead, if, as is almost inevitable, it was once thought to be comprehensive. We could list factors which are irrelevant, but again any examples would have to be so extreme as to be unhelpful, because otherwise we might be dismissing a factor which, in exceptional circumstances which we have not envisaged, might nevertheless have had some weight."[7]
24 The learned Deputy President's ultimate conclusion was expressed in para 22 of her reasons thus:-
"In my view Mr Wright was carrying out the duties of his employment as he drove to his home because he was required to undertake after hours work at some place other than school for security reasons and he was transporting the tub of schoolwork with the intention of working on it that evening when he had his car accident."
25 This statement of conclusion has to be looked at in light of the findings of fact that preceded it. It can be assumed that the learned Deputy President relied on the following facts to reach her conclusion:-
•
The worker was employed as a mathematics teacher.
•
He worked most school nights at home in an office.
•
He could not carry out his after-hours work at the school after 5.00 pm on account of security requirements.
•
The school principal was aware of and expected the worker to do after-hours work at home.
•
The worker was in effect put under an obligation by the school principal to continue his work at home.
•
The worker intended to spend part of the night of 15 March 2005 marking mathematics tests and preparing for classes.
•
There was a tub of school-work in his car at the time of the accident.
•
The journey was incidental to his planned work at home that night by reason of the transportation of the school-work that he was to work on.
26 Unstated but implicit in the learned Deputy President's findings is that it was necessary and not just personally convenient for the worker to do his after-hours school work at home. That the worker was not able to continue his work at the school past 5.00 pm, for reasons imposed by his employer, is an important feature of the factual matrix.
27 The uncontested evidence of the worker compelled a finding that he intended to in fact do more than mark mathematics tests and prepare for classes. Para 25 of his statement records that the work included "marking maths tests for two year 11 classes, assignments and tests for year 12 students, going through material in Core Skills Maths Text 23B.1 and 23B.2 for year 10 maths and preparing a grouping activity for 9 Innovations and Futures Studies". It might be inferred from this evidence that the worker was not only transporting a large volume of school work, but that the nature and importance of the material was such that the worker was under a strong obligation to ensure its security whilst in transit and away from the school premises.
28 These factors might reasonably be thought to have imposed some fetters on the worker's freedom of choice as to how he got himself home that evening. It might have been his practice to drive his car to and from school each day, but the transportation on this occasion of what his evidence indicates was a significant volume of material might be seen as restricting the freedom of choice that might otherwise have existed as to how he got himself to and from school that day. It may not have been his custom to stop anywhere on his way home from school, but by having these materials in his car it might be thought that he was obliged to either travel directly home or at the very least take extra precaution to ensure that the materials were kept secure.
29 In all the circumstances, it was in my view open to the learned Deputy President to have found an employment related purpose about the journey, in addition to its obvious private purpose, such as to warrant an affirmative answer to the question posed by Doyle CJ in Karanicos.
30 That the conclusion drawn by the learned Deputy President was open on the evidence is sufficient to determine the fate of this appeal.
31 Whether a conclusion that found facts fall within the words of the statutory provision generally raises a question of law: Hayes v Federal Commissioner of Taxation[8], Collector of Customs v Agfa - Geveart Ltd[9], Hope v The Council of the City of Bathurst[10].
32 An error of law will be demonstrated, however, only if the found facts lead inevitably to a different conclusion than that reached. If it is a question of evaluation or degree, there is no error of law: per Cox J in Kelvinator v Jezior[11]; per King CJ in WorkCover Corporation v Grigor[12]; WorkCover Corporation v Zanini[13].
33 These principles were again reiterated by the Full Bench of the Tribunal in South Australia Police Department v Barber[14].
34 Acknowledging the task ahead of him, Mr Lines submitted that the inevitable and only conclusion open on the facts was that the journey was a routine journey from workplace to home which did not meet the requirements of s 30(5)(a). I disagree. Whilst the established facts admit to a conclusion that the journey was such a journey, and no more than that, they do not preclude the conclusion drawn by the learned Deputy President that there was also an employment related purpose about the journey sufficient to bring it within s 30(5)(a).
35 The learned Deputy President did not determine the second issue in dispute as to whether there was a real and substantial connection between the worker's employment and his accident and nothing arises out of that for the consideration of this Full Bench.
36 I would dismiss the appeal.
LIESCHKE DP:
37 The Department of Education and Children's Services has appealed against a determination of a Deputy President to uphold Martin Wright's claim for compensation.
38 Mr Wright suffered a head injury when his car crashed into a tree on Sheoak Road on 15 March 2005 while in the course of a journey between Heathfield High School and his home at Lynton.
39 Because the injury happened while Mr Wright was in the course of a journey the determination of his claim was governed by s 30(5) of the Workers Rehabilitation and Compensation Act. The relevant part states:-
"(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
40 Placita (b) deals with journeys that have a real and substantial connection between the employment and the accident out of which the disability arose. It is not relevant to this appeal as the Respondent did not seriously contend the claim should have been upheld on this alternate basis.
41 The learned Deputy President identified the issue as being whether Mr Wright undertook that journey in the course of carrying out his duties of employment.
42 The relevant facts were not in dispute. They were summarised by the learned Deputy President as follows:-
"5 Mr Wright was employed by the respondent as a mathematics teacher at Heathfield High School in the Adelaide Hills. As a consequence of his diligence, limited experience, recent appointment to a new school and the requirement that he attend to marking and preparation of assignments, he continued working most evenings at home.
6. The security arrangements at the school required teachers to leave the school by 5.00 pm so that alarm systems could be activated.
7. He worked at home in the evening on most school nights. He usually worked in his home office until about 11 pm. Most teachers at the school did this.
8. At about 6 pm on 15 March 2005 he was driving from work towards his home at Lynton when his car hit a tree on Sheoak Road, Belair. He suffered a closed head injury. He has no memory of the accident.
9. Mr Wright had intended to spend his evening marking mathematics tests and prepare for classes. There was a tub of schoolwork in his car at the time of the accident.
10. Both Ms Rusk [Mr Wright's principal] and Ms Fischer [Mr Wright's supervisor] were aware that Mr Wright took work home in the evenings. Ms Rusk expected this of a teacher who taught Year 12 as Mr Wright did. Ms Rusk encouraged teachers to go home and work rather than remain at the school." [my additions]
43 The undisputed facts included a detailed description of the materials that Mr Wright had in his car and which he intended to work on that night. They included the maths tests for two year 11 classes, and assignments and tests for his year 12 students.[15] Mr Wright had intended to mark the tests and assignments, and prepare lessons for his year 10 maths class and an activity for what was described as 9 Innovations and Futures Studies.
44 Mr Wright had also attended a staff meeting that evening.[16]
45 The learned Deputy President quoted an extract from the judgment of Doyle CJ in Karanicos where His Honour set out the appropriate test that s 30(5)(a) requires to be answered, namely "Whether one would say that in undertaking a journey the worker was performing the worker's job complying with an instruction from the employer or given by the employer in exercise of its control as employer, or doing something reasonably incidental to one of those things."
46 The learned Deputy President then concluded that whilst the journey home was in part for a private purpose it also involved Mr Wright transporting work materials home so he could work on them that night and that this was doing something he was employed to do. Her Honour found that the journey home was incidental to Mr Wright being able to carry out his work at home because "he was transporting his students' maths tests and other work in the car with him at the time of the accident with the intention of undertaking the work at home."[17]
47 Her Honour found that Mr Wright's principal had placed him "under an obligation to continue his work at home by instructing him that, for safety and security reasons, he could not stay at school to complete his work."[18]
48 Her Honour ultimately concluded in para 22 of her reasons that:-
"In my view Mr Wright was carrying out the duties of his employment as he drove to his home because he was required to undertake after hours work at some place other than school for security reasons and he was transporting the tub of schoolwork with the intention of working on it that evening when he had his car accident."
49 The appellant raised two principle complaints on appeal, both of which were argued at first instance. The first was an assertion that the learned Deputy President had made an erroneous finding that Mr Wright's home was a place of employment. The second was that the conveyance of the tub of work materials to the intended place of work was not legally capable of justifying a conclusion that Mr Wright was carrying out a duty of his employment at the time of the accident, in the sense that he was not doing something reasonably incidental to performing his job or complying with an instruction from his employer.
Appeal principles
50 An appeal is limited by s 86 to a question of law only. Accordingly if a Deputy President identifies and applies the correct legal test, and if the facts relied upon are open on the evidence, no error of law can occur if the factual findings are capable of justifying the conclusion reached.[19]
Significance of Mr Wright's home as a place of employment
51 The appellant contended the learned Deputy President found by inference that Mr Wright's home was "a place of employment."[20] The appellant contended Her Honour's conclusion was based on simply linking the journey to two separate places of employment, being school and home, thereby making the journey "undertaken in the course of carrying out duties of employment."
52 In this regard the appellant relied upon the learned Deputy President's reference to the decision of Rowberry where Gilchrist DPJ said that a place of residence can have a dual personality and in some circumstances can be a place of employment.
53 In my opinion this submission is not consistent with the stated reasons of Her Honour. The decision does not depend upon Mr Wright's home being a designated place of employment. While Mr Wright's home was certainly the intended place of working that evening, as was known to his principal and supervisor, the learned Deputy President observed in para 22 that Mr Wright was required to carry out work at some place other than the school, namely his home.
54 Nor do the reasons disclose a simplistic connection between the school and home as suggested by the appellant. Its argument disregards the finding of the need for Mr Wright to transport the tub of maths tests, assignments and materials in the car with him so that he could perform the required work.
55 In my opinion Her Honour has correctly cited Rowberry's case to warn that the fact Mr Wright intended to work at his home did not cloud the real issue that his home could also be a place where duties of employment were to be performed. The decision in Rowberry was based on a finding that the purpose of the worker's journey to her home at the time of accident was "because she was obliged to do so by reason of the terms and conditions of her employment."[21]
56 In my opinion there is nothing in the reasons to suggest this authority was cited in order to justify the decision by simply characterising the destination of the journey as a workplace rather than by properly identifying both the private and work related purposes of the journey.
57 I add that Her Honour's approach is consistent with the later decision of the Full Supreme Court in Rapson v WorkCover Corporation[22] where White J observed that s 30(5) required "...at the least, a consideration of the purpose or purposes of the journey" from a work site to a worker's home.
58 I reject this ground of the appeal.
Significance of transporting work materials
59 It is clear that Her Honour placed some importance on the need for Mr Wright to take the tub of schoolwork with him on the journey. Whilst there was no finding to this effect, it is implicit that Mr Wright would have been open to censure if he refused or failed to convey the materials to the intended place of work, or if he lost or discarded materials. It is also plain that Mr Wright could not have performed all of the required work without possession of at least the tests and assignments.
60 In my opinion this is a relevant and highly significant aspect of the journey that was available for the learned Deputy President to rely upon in reaching her conclusion, and in my opinion it properly supports the conclusion.
61 The appellant raised a number of other points. It submitted the agreed facts show that working at home after hours was a practical convenience and not an obligation. I reject this submission as it is based on an incorrect characterisation of the evidence. While there may have been some discretion as to whether the work was performed at home or elsewhere, such as in a public library, Mr Wright had an obligation to perform the work that night and it could not have been done before 5 pm at school. The facts disclose far more than a teacher intending to finish some work at home that he or she had, or will have in the near future, a reasonable opportunity to complete in non-instructional time at school before 5 pm.
62 The appellant also complains the decision was not consistent with a number of other facts. Namely: that there was no formal "working from home agreement"; that the school site was the "designated place of employment"; and that Mr Wright was not specifically paid for the journey home. Whilst these assertions of fact may be correct, despite there being no evidence adduced to support or explain them, they each miss the point. The employment was structured so that Mr Wright was obliged to work at some place other than school and he had to transport a tub of important materials to that place to be able to do the work. The employer cannot have it both ways. It cannot place obligations on teachers to take such materials off-site to perform out of school hours work, and at the same time deny the reality of those obligations through various administrative procedures.
63 Finally the appellant attempted to compare the facts of this case with the facts in the case of Brophy to crudely submit that as Mr Brophy did not succeed in his claim then neither should Mr Wright. In my view that is not an appropriate argument to pursue when the appeal is restricted to a question of law. The outcome of another case based upon on entirely different circumstances cannot shed any light on the critical questions of whether or not the correct test was applied and whether the agreed facts were capable of supporting the conclusion reached. In any event the critical finding in Brophy was that while on the journey the worker was not "...doing anything that he was employed to do, ...".[23]
64 In my opinion the learned Deputy President applied the correct legal test and her conclusion is capable of being supported by the evidence. No error is disclosed.
65 I would dismiss the appeal.
[1] Unreported, Supreme Court of South Australia, judgment no S5536 delivered 3 April 1996.
[5] unreported, Supreme Court of South Australia, judgment no S6417 of 1997.
[6] [1985] 1 ALL E R 833 at 840.
[7] See also the commentary by White J in Rapson v WorkCover Corporation highlighting "the necessity for there to be detailed findings of fact which are directed to the legal issues which arise."
[17] [2006] SAWCT 65 at para 18
[18] [2006] SAWCT 65 at para 19
[19] see SA Police Department v Barber [2001] SAWCT 100
[22] [2007] SASC 172 at par 32
Department of Education and Children's Services
Wright [2007] SAWCT 52
(1997) 48 SASR 97
(1996) 186 CLR 389
(1980) 144 CLR 1
(1994) 62 SASR 285
(1988) 49 SASR 592
(1931) 46 CLR 22
(1956) 96 CLR 47