Department of Health and Ageing v Buckett [2015] SAWCT 39

A discussion as to the relevant provision of the Act

1. For an injury to be compensable under the Act it must arise from employment_._[8] However, special rules apply for journey injuries. In respect of injuries sustained in in the course of a journey from a worker's place of residence to his or her place of work they will only be compensable under the Act if the journey is undertaken in the course of carrying out employment duties or if there is a real and substantial connection between the employment and the accident out of which the injury arises.[9] The second of these can be immediately dismissed. There is no suggestion of any real or substantial connection.
2. In TransAdelaide v Karanicos[10] and restated in State of South Australia v Brophy[11] Doyle CJ made the point that the test of what are the duties of employment is by no means precise and has to be applied in a common sense and in a liberal and practical manner.[12]
3. In Karanicos, when discussing his approach to the provision, Doyle CJ traced the development of the statutory approach to the concept of "arising in the course of employment". He stated that it was not a narrow concept. He made reference to a passage from the judgment of Barwick CJ in Danvers v Commissioner for Railways (NSW)[13] where Barwick CJ stated that what is in the course of employment is not limited to what the employee is expressly or impliedly contractually bound by the terms of his engagement to do. It includes activities incidental to the performance of the work. It is wide enough to embrace any activity that the employee is reasonably required, expected or authorised to do in order to carry out the actual duties.
4. Doyle CJ then stated that in determining whether a journey was undertaken by a worker in the course of carrying out duties of his or her employment a broadly similar approach should be adopted. He then made reference to the judgment of Dixon J in Whittingham v Commissioner of Railways (WA)[14] where Dixon J spoke of the sufficiency of the connection between activity and the employment as being a matter of degree, "in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment".[15]
5. Doyle CJ said in evaluating the sufficiency of the connection to employment duties it is necessary to view the journey in context and not in isolation and that consideration needs to be given to what preceded the journey and what was going to follow it.[16]

1. The Deputy President noted that Dr Buckett was paid an allowance for being rostered on call, by holding himself available for duty. He found that at the moment of injury he was travelling to attend work for the purpose of performing more recall work tasks that arose solely as a result of him being recalled to duty earlier in the same on call period. He found that the only reason he was travelling at that particular time was to perform recall duties. He found that Dr Buckett was entitled to be paid for the whole time spent on the journey, as the recall was deemed by the Enterprise Agreement to commence at the start of that journey. This led him to conclude that the journey was undertaken in the course of the applicant carrying out a duty of his employment.

1. In contending that the Deputy President erred in law in concluding as he did, the appellant argued that the Deputy President wrongly characterised the continued treatment of Mr A as being recall duties rather than a function of his usual handover tasks normally occurring before the commencement of each shift. It was submitted that when travelling to work at the time that he did to undertake his usual handover tasks, albeit earlier than he usually would because of Mr A, Dr Buckett's second journey to the FMC was not part of his employment duties in contrast to his earlier journey the preceding evening, which plainly was. It was submitted that because his return to treat Mr A was marginally before his usual early start time the re-examination and reassessment of Mr A and the ordinary handover tasks were inseparably merged so as to be one event, indistinguishable from an ordinary early start to any other working day.
2. The appellant submitted that the Deputy President misconstrued the recall provisions of the Enterprise Agreement and that this led him into error. Specifically it was said that the Deputy President erroneously found that Dr Buckett's proposed re-examination of Mr A in the morning of 6 June 2012 was a continuation of the earlier recall. It submitted that that recall ended at 11.00 pm the previous evening and that clause 63.4 of the Enterprise Agreement provided that any separate recall stood alone for the purpose of calculations. It said that to attract an entitlement to such pay, in respect of the travel to and the early attendance on the morning of 6 June 2012, that the attendance would need to be construed as a further and separate recall to duty for the purpose of the Enterprise Agreement and that it plainly was not. Next, it was said that flowing from that finding the Deputy President was in error in stating that Dr Buckett was entitled to be paid for the whole time spent on the journey of 6 June 2012. It was submitted that this error infected the Deputy President's reasoning and conclusion.

1. Had Dr Buckett been injured during this first journey to FMC on the night of 5 June 2012 there is no question that his injuries would be compensable. As he was on the on call roster his employment duties were to be ready willing and able to provide medical services over the phone; to attend the FMC or WCH within 30 minutes if recalled to duty; and to provide medical services at FMC or WCH if recalled to duty. Once he was recalled to duty he was carrying out his employment duties when he first travelled to the FMC. The sole purpose of the first journey to FMC was to satisfy his recall duty to treat Mr A. The appellant conceded as much in its written submissions.[17]
2. The situation is less straightforward here because Dr Buckett was not injured during the first, but a second journey to the FMC. And in connection with that journey, with respect, in our view the Deputy President erred in concluding that for the purposes of the Enterprise Agreement it was part of the earlier recall. Although it is permissible in interpreting an industrial instrument not to adhere to the literal or strict technical meaning of the words used, the starting point is to assume that the words used mean what they say. On the proper application of the terms of the Enterprise Agreement, and in particular cl 63.6, the earlier recall ended when Dr Buckett arrived home after leaving the FMC. Thus as to whether he was entitled to remuneration on Enterprise Agreement recall rates, Dr Buckett's entitlement ended there and then.
3. The second journey to work the next morning could not be characterised as another recall for the purposes of payment under the Enterprise Agreement because there was no second recall. Whether he was otherwise entitled to be paid[18] during that second journey begs the question as to whether, in undertaking it, he was carrying out his duties of employment.
4. Whilst it might be assumed that a conclusion that Dr Buckett was entitled to be paid for undertaking the journey was a significant factor in leading the Deputy President to conclude it was undertaken in the course of carrying out employment duties, it does not, however, follow that the appeal must succeed. If on the other facts as found, the application of the relevant legal principles yields that same answer, the appeal must fail.
5. It now becomes necessary to examine in some detail Dr Buckett's evidence.
6. In his uncontested evidence Dr Buckett explained handovers:

"Handovers involved updating my colleagues as to the patients on the ward and who they are currently treating. It involves sitting in front of a computer with a list of patients and going through the diagnosis and the treatment of each patient with the medical team. Handovers commence at 7.45am to 7.50am. They take approximately 15 minutes.[19]

My hours of employment were from 8.00am -5.00pm, 5 days per week including overtime.[20]

During the week I would arrive at work at approximately 7.15 - 7.30am."[21]

1. During his cross-examination by Mr Roberts SC, Dr Buckett agreed that he would typically arrive at 7.15 or 7.30am for an 8.00am shift and that he would generally start his time sheet as a 7.30am start.[22] And as to the handover process this exchange took place:
   1. "And that was because you considered that it was necessary to look into the details of the patients prior to the ward round, in order to be able to inform your more senior colleagues as to the state of the patients?
   2. That's right. So I would spend the first 15 minutes going through all the scans and blood test and things like that, that had happened the day before, and bring myself up to speed with the patients' stories, so that I could do proper, appropriate handovers and discuss patients appropriately with senior staff who would rarely go on the ward round because they would go to theatre.
   3. That was in effect because you thought to properly discharge your functions it was necessary for you to be there earlier than your ordinary shift time [8.00am]?
   4. Yes.
   5. Likewise, when you were on call the night before, your practice was to arrive early?
   6. Yes, generally 7.15am to 7.30am was when I'd arrive most days.
   7. And if you were on call the night before and you'd seen a patient the night before, you would come in a bit earlier again in order to check on that patient, as well as do other things that you would normally do before your shift was formally to start?" (underlined for emphasis)

[No response is recorded - presumably Dr Buckett agreed, perhaps he nodded his head - Mr Roberts then said "Thank you."][23]

1. In that exchange Dr Buckett explains that he would ordinarily arrive for his 8.00am to 5.00pm shift at 7.15 to 7.30am and would spend fifteen minutes conscientiously updating himself with the details of patients in order that a proper handover of those patients be affected, and that if he was recalled to duty the night before that he would arrive earlier again in order to check on that specific patient.
2. As to the requirement to check on that specific patient there was this exchange between Mr Hanus, counsel for the respondent and Dr Buckett:
   1. "Does the requirement to reassess someone that you have seen overnight depend upon the clinical condition of the patient?
   2. It does. We're expected to see all of the patients that we would see the night before, but the timing of that is dependent on the clinical condition of the patient. So if somebody is seriously injured and you are worried about them, it may be that you don't return home at all; you stay in place to monitor them or you return a couple of hours later to check on them, or you can just check on them first thing in the morning before you start your normal hours." (underlined for emphasis)

"So in his situation I needed to neurologically assess him again and make a call whether he needed to go to theatre by talking with my bosses and book all that in before I started work. So my intention was to see him at about quarter past 7, half past 7, to make my assessment which would take me about 15 minutes."[24]

1. We now turn to consider this evidence by reference to the relevant legal principles.
2. Whilst there are obvious examples either way[25] the inquiry as to whether an injury is sustained whilst carrying out duties of employment can be a difficult question.
3. Ultimately what is required is an evaluation of the facts pointing for and against.
4. Here Dr Buckett routinely commenced his shift early so as to be at work before handover. In deciding to come to work even earlier to re-examine and reassess Mr A, the time difference was not great, being just fifteen minutes. In some respects this journey was indistinguishable from any other journey that Dr Buckett might have undertaken to attend for work at the FMC.
5. On the other hand there were a number of distinguishing features. This was not a case involving a clerical officer who had resolved to get to work earlier than usual to get organised for the working day ahead.
6. Here we are concerned with a highly qualified medical practitioner who was on call and was recalled to duty the previous evening. The patient who was the subject of that recall was in a serious condition and required monitoring. Dr Buckett's evidence demonstrates firstly, that as an employed medical practitioner he was required to exercise his clinical judgment as to the appropriate time at which to re-examine and reassess Mr A. Secondly, it shows that as a condition of his employment he was required to continue that treatment of Mr A at an appropriate time before his shift and before his usual handover tasks. In this instance the fact that the timing of that examination was marginally before handover does not change its essential character. It was not an additional handover duty. Its timing reflected Dr Buckett's professional clinical judgment as to when that examination ought to take place.
7. We apply the common sense and liberal practical approach that Doyle CJ directed us to do in Karanicos and Brophy. We do so by reference to contemporary conditions and contemporary understandings of the concept of the duties of employment of a medical practitioner.
8. When the relevant journey is viewed in the context of the recall to duty the previous evening, its accepted purpose[26] and its timing,[27] it leads to the conclusion that in undertaking it Dr Buckett was carrying out his duties of employment.

1. Whilst the Deputy President erred in concluding that for the purposes of the Enterprise Agreement Dr Buckett was entitled to be paid, as part of the earlier recall in undertaking the journey in which he was injured on the morning of 6 June 2012, the evidence before him supported the ultimate conclusion he reached. The evidence demonstrated that in undertaking that journey Dr Buckett was carrying out his duties of employment. The appeal must therefore be dismissed.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Workers Rehabilitation and Compensation Act 1986 (SA)

[2] The Department was the relevant compensating authority for the purposes of the Act

[4] Department of Health Salaried Medical Officers Enterprise Agreement 2008

[10] TransAdelaide v Karanicos (unreported, Supreme Court of South Australia, Doyle CJ, Millhouse and Williams JJ, Judgement No. S5536 of 1996, delivered 3 April 1996)

[11] State of South Australia v Brophy (1997) 58 SASR 97

[13] Danvers v Commissioner for Railways (NSW)[1969] HCA 64; (1969) 122 CLR 529 at 536

[14] Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22

[17] It did so in connection with its reference to Blee v London & North Eastern Railway Company [1938] AC 126 at 133-134.

[18] Perhaps overtime rates, Enterprise Agreement Clause 61.

[19] Buckett statement 09/10/14 paras 77-80

[25] The courier driver who commences making deliveries immediately after leaving home is plainly carrying out employment duties when doing so. The clerk who merely travels to a place of work from home is clearly not.

[27]To make the assessment before handover and before the morning shift commenced.