Jellicoe v R P & Lj Robertson [2006] SAWCT 10

4 There was no first hand evidence of the terms of the contract of employment. Mrs Jellicoe was able to give some evidence about the contract of employment. Her oral evidence, written statement and record of interview by an investigator are all consistent. She was not cross-examined before the Arbitration Officer. Although some of her evidence can be regarded as hearsay or second hand evidence, it is the best evidence available in this matter and can be accepted by me. It is appropriate for me to rely on Mrs Jellicoe's evidence given her knowledge of her husband's working conditions, the death of Mr Jellicoe and the mental incapacity of Dr Robertson. In doing so I rely on the relevant exceptions to the hearsay rule and to the extent that it is necessary on s 84 of the Act.

5 I make the following findings based on Mrs Jellicoe's statement and evidence before the arbitration officer and the documentary evidence that was contained in the trial book.

6 Mr Jellicoe was employed by the respondent as a general handyman. He worked fulltime. He worked from approximately 7.00 am until 4.00 pm each weekday. He was paid $543 per week. He could be requested to return in the evenings or on the weekends. He never refused those requests. He was not paid any extra if he did so. He was paid the same wages regardless of the amount of hours he worked. His duties included farm work, fencing, watering, general maintenance, driving the doctor to appointments and some domestic work.

7 There is no evidence as to the proportion of time that Mr Jellicoe spent on his various duties. I find that no award applied to Mr Jellicoe's employment.

8 The house that Mr and Mrs Jellicoe lived in was on the same road and approximately three kilometres west of the farm where Mr Jellicoe worked.

9 On 5 February 2004 Mrs Jellicoe received a phone call from Dr Robertson at about 7.30 pm. Dr Robertson requested that Mr Jellicoe come because water had flooded all over the laundry floor. Mrs Jellicoe told Dr Robertson that she was not sure that Mr Jellicoe was home. However she passed the message on to her husband and he decided to go. When he had not returned over an hour later she went looking for him and found him lying on the road one hundred metres from home. Neither she, nor neighbours she sought assistance from, could resuscitate him. The police report indicates that he was travelling west (towards his home) at the time of the accident.

10 In my view it is reasonable to infer that Mr Jellicoe did attend at the Robertson farm in response to the request from Dr Robertson and after carrying out his employer's request was returning home when he was killed.

11 Mr Kernot argued that Mr Jellicoe had been recalled to duty. He argued that a recall to duty situation could be differentiated from normal working hours in relation to journey injuries. He relied principally on the decision of Stanley P in St John Ambulance Service of South Australia v The Ambulance Employees Association [1992] SAIRC 30.

12 That case dealt with the requirement that ambulance officers who were called back to work be paid for the minimum of three hours overtime even if their next shift commenced in less than three hours. In his judgment Stanley P quotes from the decision of McCusker J at first instance:-

"a recall focuses on a situation of return at request to work after having completed the usual stint and before the time arranged for the next commencement in the ordinary course. It is the quality of the uncontemplated and unexpected that marks it. It is an extra to the arrangement generally in existence between employer and employee."

13 While the decision dealt with the payment of workers under an award, the definition of 'recall' encapsulates the nature of the duty that Mr Jellicoe was undertaking and provides an understanding of the journey on which Mr Jellicoe travelled on the evening of 5 February 2004.

14 Well before that case was decided Lord Atkin and Lord Maugham drew a distinction between the situation where a worker would go to his ordinary work and emergency work. In Blee v L.N.E.R. 1937 4 All ER 270 the worker was knocked over and killed on his way to emergency duty for the Railways. His widow successfully claimed compensation. Decisive was the necessity to proceed directly to work because of an emergency.

15 Mr Gabrynowicz argued that on the evening of 5 February 2004 Mr Jellicoe's journey was for a private purpose and therefore not covered by the exceptions set out in s 30(5) of the Act. In TransAdelaide v Karanicos 3/4/96 SASC 5536 Doyle CJ said:-

"whether one would say that in undertaking the journey the worker was performing the worker's job complying with an instruction from the employer or given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things." (par23).

There seems to me to be no doubt that Mr Jellicoe was complying with Dr Robertson's instruction when he set off from home that evening.

16 Mr Gabrynowicz argued that Mr Jellicoe was under no contractual obligation to agree to the request to return to work. The widow's evidence was that Dr Robertson expected him to return to work and that he always had returned when requested to do so.

17 Mr Gabrynowicz also argued that Mrs Jellicoe gave Mr Jellicoe the opportunity not to attend by telling Dr Robertson that she did not know Mr Jellicoe was home, when in fact she knew he was home. Once she communicated the request to Mr Jellicoe he said he would go. Neither Mrs Jellicoe's wavering as to whether she should tell her husband about the call nor her wish that he not attend when called back make any difference to the obligation Mr Jellicoe was under to Dr Robertson.

18 In State of South Australia v The Estate of Mason [2002] SAWCT 114 Parsons DPJ and Cawthorne DPJ said that the driving by the worker in that case was "reasonably incidental to compliance with an instruction from the employer". The worker in that case was paid an allowance for the driving. In my view because he was paid a set wage for whatever hours he worked the fact of payment is not decisive as to whether Mr Jellicoe was engaged in the performance of his contract of service.

19 Although in this case Mr Jellicoe was returning home from work, it could be argued that the return journey was consequential to his attendance to the minor emergency that had arisen at the farm that evening. In Mason v State of South Australia (Department of Education, Training & Employment) [2002] SAWCT 22 McCusker DPJ noted that it would be inherently anomalous if the worker was entitled to compensation while travelling toward the bus terminus but not as she travelled away from it.

A real and substantial connection between the employment and the accident

20 As I have decided that Mr Jellicoe undertook the journey in the course of carrying out duties of employment I have not dealt with the arguments regarding whether there was a real and substantial connection between the employment and the accident.

21 In my view from the time he left his home until the time of his accident Mr Jellicoe was engaged in the performance of his contract of service. The journey to and from the farm is part and parcel of the recall to work by Dr Robertson. Mr Jellicoe undertook the journey in the course of carrying out his duties of employment.

22 Therefore the determination rejecting Mrs Jellicoe's claim for compensation should be set aside and in lieu thereof a determination be substituted accepting the claim.

An appeal against any part of this decision pursuant to s 86(1) of the Act must be filed with the Registrar within 14 days of the delivery of this decision. The form titled Notice of Appeal must be used. The Notice must be served on all parties.