Lillicrap v Forestry SA [2013] SAWCT 6

"(5) An injury 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

(i) the worker's place of residence and place of employment; or

(ii) the worker's place of residence or place of employment and -

(A) an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or

(B) a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable injury,

and there is a real and substantial connection between the employment and the accident out of which the injury arises.

(6) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).

(7) The journey between places mentioned in subsection (5)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker."

1. The issue for determination on this review of the disputed claim is whether the disability suffered by Ms Lillicrap on 10 January 2011 arose out of or in the course of a journey that was undertaken in the course of carrying out duties of her employment.
2. On review Ms Lillicrap did not seek to justify the claim by reference to s 30(5)(b).

1. There was no dispute between the parties as to the background circumstances, apart from the extent, if any, of an obligation to keep a look out for fire related activity outside of the Mt Burr Forest. In support of her claim Ms Lillicrap gave oral evidence to supplement a written statement. Various employment documents were also tendered. In addition written statements and brief oral evidence was given by Jeremy Mansell who was Ms Lillicrap's immediate supervisor in the role of District Forest Manager for the Mt Burr area. Greg Saunder, the General Manager of Operations for Forestry SA also gave evidence.
2. Ms Lillicrap was employed as a Graduate Forester and had been appointed from 6 November 2010 until April 2011 as a Supervisor Operations in the Mt Burr Forest District. The Mt Burr District comprised about one third of the total South East forests under the management of the respondent, which in total covered about 85,000 hectares.
3. The Mt Burr District in part abuts the Mt Gambier Forest District although there is some privately held farmland in between.
4. Ms Lillicrap had her own office in the Mt Burr Forest headquarters, although she spent more than half of her time in the field supervising forestry operations. When in the field the ute served as her mobile office.
5. One of Ms Lillicrap's duties of employment was to be actively vigilant to maintain a lookout for fire and fire related activity while driving in and around the Mt Burr Forest area. As Ms Lillicrap put it, "in strict terms" it was not her responsibility to keep an eye on the Mt Gambier Forest area. It was however an informal expectation of the respondent that she would do so while in the adjoining forest area.
6. Ms Lillicrap had elected to fully participate in the respondent's fire fighting activities. Accordingly she was a participant in an on-call roster during fire season. To this end she had spent the day prior to the car accident, being Sunday 9 January, on dedicated standby at the respondent's premises and prepared for fire fighting activities if a fire should break out. That duty was completed at the end of the Sunday and had no connection with the events the following day. Ms Lillicrap was also available to be called out to assist with fire fighting activities 24 hours a day, although she had the right to decline to do so for any good reason.
7. The contract of employment did not require Ms Lillicrap to work fixed hours of employment. There were usual hours of employment, but in addition Ms Lillicrap was required to perform whatever necessary out of hours work in order to discharge her supervisory functions. She was not entitled to overtime payments because of the salary arrangements in place. The salary was not expressed to provide remuneration for travelling time to and from home.
8. Ms Lillicrap was provided a four wheel drive ute that was to be used only for work purposes. The ute was equipped with two two-way radios, a dedicated work mobile telephone and fire fighting equipment. The equipment comprised two pressurised fire extinguishers, a rake, a hoe, a tank of water and personal protective equipment. It is accepted that Ms Lillicrap could and would use the equipment should the occasion arise.
9. The respondent's stated purpose for the provision of the ute was "to ensure immediate response to protect forest assets from fire".[2]
10. It is accepted that Ms Lillicrap was required to drive the work supplied and equipped ute, with its full complement of fire fighting equipment from her home to her workplace and from her workplace to her home. She was not required to take any particular route.
11. She was not entitled to carry any other person in the vehicle, and she was not able to use the vehicle for any other purpose such as for driving to her gymnasium or to any shops upon her way home from work.
12. As Ms Lillicrap was obliged to drive that vehicle she did not have the option of arranging any other way of getting to and from Mt Burr, either routinely or occasionally. For example she could not ride a bicycle, could not get a lift with a colleague or her husband who also worked for the respondent at the time, and could not use her private vehicle.
13. These conditions applied during the fire season, which was at its peak at the date of the incident.
14. Use of the vehicle was not a concession or gratuity granted by the employer to Ms Lillicrap in response to a request.
15. The respondent's fringe benefits tax returns declared the entire use of the ute to be for work purposes.
16. On the morning of 10 January 2011 the ute Ms Lillicrap was driving to work left the road and rolled over. Ms Lillicrap has no memory of what caused the vehicle to leave the road, due to the injuries she sustained and the resulting trauma.
17. There is no evidence as to the cause of the vehicle leaving the road. There is no suggestion that Ms Lillicrap was doing other than attempting to operate and control the vehicle in a competent and safe manner so that she could convey it and herself to Mt Burr.
18. The accident site was about 15 kilometres from the Mt Burr headquarters on a public road, the Princes Highway, inside the Mt Gambier Forest. This adjoined the Mt Burr Forest district in places, but the Princes Highway left forested areas and traversed open farmland a short distance beyond the accident location, before entering the Mt Burr Forest.
19. There is no evidence that Ms Lillicrap was specifically distracted by any particular observation of the forest or related areas, such that this was a contributing factor to the vehicle leaving the road. While that remains a possibility, there is no evidence to justify such a conclusion.
20. There is no evidence of the vehicle's speed prior to the accident. There is no evidence that the road conditions or visibility were unusual and contributed to the vehicle leaving the road. There is no evidence of any known mechanical defect or failure that contributed to the accident.
21. There was hearsay evidence that an accident investigator who assessed the accident expressed an opinion that the vehicle rolled over because it hit a stump. As this was the only explanation attributed to an unidentified investigator I place no reliance on it.
22. There is also no evidence of the differences between the controls and handling qualities of the ute as compared with her personal vehicle.
23. Ms Lillicrap sustained severe injuries including multiple fractures. Remarkably Ms Lillicrap was able to return to work some months later and she continues in the full time employ of the respondent.
24. Mr Mansell gave evidence that it was not Ms Lillicrap's strict responsibility to keep an eye on the Mt Gambier District, but confirmed that Ms Lillicrap was required to be vigilant while driving in and around the Mt Burr forest area.
25. Mr Saunder said that the ute was provided to Ms Lillicrap to: ensure an immediate response by her to protect forest assets; because she needed to be on standby and she may need to do things on the way to the site; so that she was in radio communications; and so that she had the ability to travel directly to an incident. As manager of operations he had to ensure the ute was used for business purposes only.

1. As indicated above, for the applicant to succeed she must demonstrate that the journey, from which her disabilities arose out of or were sustained in the course of, was "undertaken in the course of carrying out duties of employment."
2. The meaning of s 30(5)(a) was first authoritatively described in TransAdelaide v Karanicos[3]. Doyle CJ stated that the expression "duties of employment" in subsection (5)(a) is a narrower concept than that of "in the course of employment".[4] His Honour went on to describe the meaning of the expression in the following passage:

"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."[5]

1. A subsequent Full Bench of the Supreme Court affirmed that principle in the State of South Australia v Brophy[6].
2. The same principle was more recently endorsed by the Full Supreme Court in Wheeler v State of South Australia[7]. In Wheeler White J, with whom the other members agreed, went on to summarise the conclusion of Doyle CJ in Karinicos as follows:

"Thus, the concept of carrying out duties of employment has at its heart the doing of something which workers may be required to do, either because it is the activity for which they are employed, or because it is within the power of control of an employer to direct that it be done. In addition, a journey which is reasonably incidental to one or other of those circumstances may amount to the carrying out of a duty of employment."[8]

1. In Brophy's case the Full Court concluded that the worker's journey was not undertaken in the course of carrying out a duty of employment. Whilst Brophy was riding a police motorbike was wearing his police uniform, his ability to use the police motorbike to ride home was a concession granted by the employer in response to Brophy's request. There was no obligation on the employer to continue to allow Brophy to use it. Whilst there were instructions that applied to Brophy with respect to the manner in which the concession was to be enjoyed, the instructions did not provide support for a conclusion that Brophy was thereby carrying out a duty of employment.[9] The court went on to conclude that it could not 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."[10]

1. The last comment was a reference to the evidence which indicated that should the occasion arise, Brophy was required to exercise his powers as a police officer, and that the uniform he was wearing, the motorbike he was riding and the police radio communications he was monitoring, probably increased the likelihood of him being called upon to exercise his powers. But on its own that did not alter the fact that he was not carrying out a duty of employment whilst riding home.
2. In Wheeler's case the Full Supreme Court upheld a decision of the Full Bench of the Workers Compensation Tribunal that the circumstances of Wheeler's injury were not compensable. White J, with whom the other members agreed, concluded that the Tribunal was correct in reasoning that by the time Wheeler commenced the journey, during the course of which he suffered injury, "he was not doing anything connected with his work as a police officer or as an instructor. The appellant was undertaking the journey in his own time and, further, at a time when he had freedom of movement."[11]
3. Notably none of the Full Supreme Court decisions of Karinicos, Brophy or Wheeler give any support for the contention of the respondent in this case that upon an application of subsection (5)(a) it is necessary to ascertain and recognise only the dominant purpose of the journey.
4. The contention that the performance by a worker of a duty of employment may still lead to the claim being rejected under subsection (5)(a) because another purpose of the journey can be ascertained, namely for a worker to get themselves either to or from work, has been rejected by this Tribunal. In Nebl v CGU Workers Compensation[12] the Tribunal said that there did not need to be a primary purpose of the journey. In Conte v WorkerCover Corporation (Olivetti Australia Pty Ltd)[13] a similar approach was taken by Gilchrist DP. In that matter the finding was that the worker was required to drive his private motor vehicle to work so it could be available for work purposes during the day. The worker was injured in the employer provided car park. Whilst the Deputy President acknowledged that in undertaking the journey on the day of the accident the worker was fulfilling in part a private purpose in that he was getting to work, what was held to be a significant and distinguishing feature to Brophy's case was that the worker was compelled by the terms of his employment to drive his motor vehicle to work. The fact that the journey also fulfilled a private purpose of conveying the worker to his place of work did not negate the fact that the worker was required by the terms of his employment to drive his motor vehicle to work.
5. A similar approach was taken in the State of South Australia v The Estate of Barbara Mason[14] by a Full Bench of the Tribunal. In that matter a school bus driver was injured whilst travelling back to her home in her private vehicle from a farm house where, at the end of the outward day's run, she had parked and left the bus overnight. The issue was whether the journey was undertaken in the course of carrying out a duty of employment or was incidental thereto. Despite the journey also having the purpose of conveying the worker to her home it was found, in context, to be a duty of employment.

1. Based on the above authorities I am to apply the wording of subsection (5)(a) in a commonsense and practical manner. To conclude that the injury was compensable requires an affirmative answer to the question of whether in undertaking the journey Ms Lillicrap was complying with an instruction from her employer or was doing something reasonably incidental to an instruction.
2. Mr Austin, counsel for Ms Lillicrap, submitted that there were two important features of Ms Lillicrap's circumstances, which should lead to the conclusion that the disabilities are compensable. He submitted that these circumstances distinguish the case from Brophy. Mr Austin relies upon the provisions of s 30(5)(a), to the effect that the journey was undertaken in the course of carrying out duties of employment. The duties of employment were said to be two fold. The first was to convey the employer's four wheel drive ute with its full complement of fire fighting equipment to the Mt Burr Forest headquarters from her home. The second duty of employment was to keep an active look out for fire related activity in the forest and forest related areas while driving to Mt Burr.
3. In response Mr Calligeros, counsel for the respondent, submitted that the circumstances as to why Ms Lillicrap was driving the respondent's ute at the time of the accident, in contrast to why Brophy was riding a police motorbike at the time of his accident, were not relevantly distinguishable. Mr Calligeros submitted that the purpose of her journey was simply to get to her normal place of work and the journey therefore primarily had a private purpose. The fact that she was obliged to drive the respondent's ute with its equipment to Mt Burr did not alter the primary nature of the journey as being for private purposes. In accordance with this submission, the asserted primary purpose of the journey somehow negates the fact that a requirement of her employment was that she personally drive that particular vehicle to Mt Burr.
4. In my opinion there is no basis for importing into the wording of the section an additional qualification that the performance of the duty of employment must be the primary purpose of the journey. To do so would significantly alter the subsection. Nor is this approach consistent with Full Court authority, or with the previous approach of the Tribunal. In my opinion the question of the purpose or purposes of the journey are subsumed by the wording of s30(5)(a).
5. I also disagree with the submission that the circumstances of why Ms Lillicrap was driving the ute are not of significance. These are clearly relevant to the question of whether the journey was undertaken in the course of carrying out a duty of employment.
6. In my opinion, at the time of the accident occurring and for the whole journey until then, Ms Lillicrap was "complying with an instruction from the employer given by the employer in the exercise of its control as employer" to drive this particular vehicle with its equipment from her home, through the forests and to the Mt Burr headquarters. The employer's instruction had the understandable stated rationale of ensuring an immediate response to protect forest assets in the event of fire related activity.
7. Driving the ute to Mt Burr in accordance with her employer's express instruction during the fire season, is in a different category to being granted the concession, privilege or gratuity upon request of driving the employer's vehicle to and from work. It is the difference between complying with a serious instruction given by the employer, and having the benefit of a discretionary concession, privilege or gratuity. In my opinion these circumstances distinguish the case from Brophy. Whilst the journey was also undertaken for the purpose of getting herself to work, it was still undertaken in the course of complying with the employer's instruction to bring this particular vehicle with its fire fighting equipment to her place of work. As such she was performing a duty of her employment while travelling to Mt Burr. Arriving at Mt Burr without the ute would have been in breach of her specific instructions. The fact that the journey had two purposes, and that Ms Lillicrap had a benefit from not having to otherwise arrange transport to and from work, do not negate the reality that she was complying with her employer's instruction while undertaking the journey.
8. In reaching this conclusion I have not placed any weight on the FBT treatment by the respondent of the worker's use of the ute. Whilst reporting no fringe benefits is consistent with the employer's instruction for her to use the ute to get to and from work during fire season, the issue is not the characterisation of the ute as being a work or private vehicle, or some combination of both notions. The correct question is simply whether or not the journey was undertaken in the course of carrying out a duty of employment.
9. Mr Calligeros next submitted that Ms Lillicrap's obligation to keep a look out for fire related activity could not be validly distinguished from the circumstances in Brophy's case. He submitted that the worker's obligations to look out for, fight fire or to act to protect the forest if the need arose, were analogous to, but not so extensive as, Brophy's obligation to exercise his police powers should the occasion to do so arise.
10. Mr Calligeros submitted that the obligation to keep a look out for fire related activity did not strictly apply outside of the Mt Burr Forest area. In this case the incident occurred in the Mt Gambier Forest. He submitted that even if it is accepted that there was an informal expectation placed upon her by the employer to keep an eye out for fire related activity in the Mt Gambier Forest area, (and the respondent does accept that Ms Lillicrap was conscientious in keeping an active look out for fire related activity wherever she drove), this was insufficient to establish that the journey was undertaken in the course of carrying out a duty of employment.
11. In my opinion this last submission is correct. On the evidence before the Tribunal, and notwithstanding Mr Mansel's evidence, I conclude that at the time of the accident Ms Lillicrap was in an area where she was expected, albeit informally, to keep a look out for fire related activity, and that she was doing so. Despite this finding, my opinion is that this practice is too incidental and peripheral to be a sufficient basis for concluding that the journey was being undertaken in the course of carrying out a duty of employment, when the test is applied in a common sense and practical manner. It was really no more than keeping an eye out for any circumstance which would require her to recall herself to duty, as was the case with Brophy.
12. Finally, I reject the respondent's suggestion[15] that only sub-section(5)(b), and not sub-section(5)(a), can be utilised in circumstances of a journey being between a place of residence and a place of employment. That restrictive construction is not justified by the wording of the provision and is not consistent with any of the previous authorities. In Brophy the Full Court considered s 30(5)(a) and s 30(5)(b) as alternatives.[16]
13. For these reasons I conclude that the determination of 7 March 2011 must be set aside and substituted by a determination that the disabilities sustained by the worker on 10 January 2011 are compensable. I will hear from the parties as to the terms of consequential orders.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

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] see State of South Australia v Wheeler [2012] SASCFC 111 at para 20

[3] [1996] SASC 5536

[6] (1997) 68 SASR 97, at 104

[7] [2012] SASCFC 111, at para 54

[11] Para 68, see also Rapson v WorkCover Corporation [2007] SASC 172 at [34]

[12] [2000] SAWCT 27 at para 18

[13] [1998] SAWCT 49

[14] [2002] SAWCT 114

[15] Tr 79, and written outline para 17.