Jahic v Holden By Design [2001] SAWCT 9

(a) The worker's statement in Trial Book 35 - 43 particularly at 39.

(b) Two plans of the employer's premises in relation to the vehicular egress available to the worker.

1. The worker was employed at HBD's Elizabeth Plant.

2. The HBD premises was situated wholly within and was completely surrounded by the larger Holden premises

4. On 10 March 1999 the worker at the end of day shift drove his car out of the car park at HBD's premises.

5. His plan was simply to go home. He passed through the gate of the employer's premises, drove out onto a road that gave access to Grainger Road Elizabeth. Whilst he was on that road ie the access road, he lost control of his vehicle and collided with trees and was injured.

6. The access road was not owned by HBD. The incident occurred outside the limits of HBD's land which is fenced.

7. The access road was used by employees of HBD and GMH to gain access to their respective places of employment.

8. According to the worker's statement it was a "private road" and provides one of only two entrances to HBD.

7 Mr Britton from the bar table asserted that the road was a "necessary access" in the sense that an HBD employee could gain entrance to HBD only via this road. Mr Britton's implication was that such access was exclusively via this road. The worker's statement does not say that. However it may be that Mr Britton's argument does not depend upon "exclusive" access.

8 It is common ground that the road was used by members of the public. It is trite law that a road which is privately owned could be a public road for the purposes of the Traffic Acts. Nothing turns on that.

9 The worker's claim is put on the basis of s 30(3)(c). S 30(5) ie the journey provisions of the Act are not relied upon. S 30(3)(d) says:-

(c) attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place;"

"A place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated."

(a) a building, structure or place (including an aircraft, ship or vehicle); or

10 The submission advanced on behalf of the worker is "place of employment" is a concept wider than that of "premises of the employer". It extends the location to that of ingress and egress which is necessary for a worker to access the employer's actual physical premises. The authority for this proposition is said to be WorkCover Corporation/HIH Winterthur Workers Compensation (SA) Limited v LJ Christie [2000] SAWCT 22. That Full Tribunal decision must be read in conjunction with the primary judgment Christie v WorkCover Corporation/HIH Winterthur Workers Compensation (SA) Limited JD77/1999 per Gilchrist J. The Christie Cases are said to demonstrate that whilst a worker is egressing from the employer's premises then the worker is at the place of employment.

11 This worker was egressing from HBD's premises in driving out on the egress road to Grainger Road.

12 Therefore this worker was at "the place of employment" when the motor vehicle accident occurred.

13 It was urged upon me that the facts of this case were on all fours with Christie's Case.

14 Furthermore it was urged upon me that the analysis conducted by McCusker J in the Full Tribunal's version of Christie's Case of the "boundary" cases arising out of journey cases leads to the conclusion that it is necessary in a s 30(3)(c) case to deliniate the boundary of the employer's premises or place of employment in the same way as that was done in the journey cases.

16 Far from the facts of this case being on all fours of Christie's Case they are completely different. The short facts in Christie's Case are that Ms Christie who worked in a shop in the Tea Tree Plaza was present at an after work meeting called by her employer with the staff. When the meeting was finished she returned to the shop at which she was employed and picked up her handbag to leave the shopping centre. By that time the shopping centre main doors had closed. Her only method of exit was via a fire exit door. Near the fire exit door some tiling had been carried out and she slipped on that tiling and was injured:-

(a) the worker was using the door because the main doors of the shopping centre were closed and

(b) she had to use the fire door because she had been detained at a staff meeting after hours.

"Those portions of the Plaza to which the worker was required or permitted access by her employer, constituted her place of employment for the purpose of the Act. I think that the worker remained at her place of employment at the very least, until she passed through the fire escape doors on the ground floor of the plaza. Whether she continued to be at her place of employment thereafter, does not have to be decided.

19 Gilchrist J said: "Had the worker's accident occurred at a time when the Plaza earlier was open to the public - there would have been much force in what Mr Sargent (for the respondent) submitted before me."

20 That is to say Deputy President Judge Gilchrist rescinded from the very situation that arises in this case.

21 In the Full Tribunal the President and Deputy President McCouaig decided the appeal adverse to the employer on the basis that the appeal did not raise a point of law. Ie the decision was a question of fact. Deputy President McCouaig at 14 observed:-

"I think it is evident that the learned Deputy President's focus was on whether the worker was at the time of her injury at a place where she was required to be to carry out her duties of employment. The reality is that to attend the meeting called by her employer the worker necessarily had to access public areas of the plaza".

22 I respectfully adopt Deputy President's McCouaig's analysis of the primary judgment. It takes up the very words of the definition which in simplistic terms says no more than if a worker is in a place for the purposes of carrying out the duties of the employment, then that place is the place of employment. There is nothing particularly sophisticated about that analysis.

23 There is no comfort for the worker's submission in Judge McCusker's reasoning. At 13 His Honour said:-

"The place of employment extends to the whole of the shopping centre building and the land within the external boundaries of the land on which that building is situated. When a reference is made to the building, it is not a reference to a room or a shop within the building".

24 His Honour's excursus into boundary cases arising from journeys was doing no more than point out that the delineation of the "place of employment" was a question of fact.

25 A recent case that turned on "duties of employment" in the public section of a shopping mall is Vizzari v WorkCover Mercantile Mutual (SA) Workers Compensation Ltd (Northrock Pty Ltd) [2000] SAWCT 191.

26 There is no support at all for the proposition that the "place of employment" per se extends to ingress and egress to the employment. The reason for this is simple. It is not what the Act says. When ingress and egress falls outside of the boundaries for consideration it will usually be a s 30(5) case unless the location of the incident is one where "duties of employment" are being undertaken.

27 The practical difficulty of adopting a "necessary access" test was highlighted by Mr Coppola. He submitted that on the test proposed by Mr Britton for every person who worked inside the boundaries of the Adelaide Airport (with any of the multitude of employers) their place of employment commenced at the junction of Sir Donald Bradman Drive and Sir Richard Williams Avenue.

28 On the facts of this case it is quite clear that the worker had left the place of employment. Furthermore the worker was doing nothing that could be construed as carrying out the duties of employment (and indeed he specifically says so ie was going home) when he was driving his car on the road.

29 Hence the worker's injuries are not compensable. The determinations are confirmed.

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.