Marschall v Workcover/Allianz Australia Workers Compensation

1 The parties have stated the issue I must decide in the following terms (TB 18):-

"The parties agree with the findings of Arbitration Officer Pnevmatikos in her decision dated 15 August 2002 except to the finding that the company car comprised the worker's `workplace' at the time or that in the circumstances the worker's disability is compensable."

2 Therefore I am to adopt the Arbitration Officer's fact finding. However I am to deal with the matter in the normal way otherwise and consider it irrespective of the outcome on those facts at the arbitration hearing.

3 The worker was Area Manager/Technical Adviser for Adelaide Pest Control. He was provided with a company car in which a two-way radio was installed. His duties were essentially that of a salesperson and technical adviser. This required him to provide quotes on site. Such work necessitated continual travelling from site to site. He had suffered an injury previously when attending a property to obtain details for a quote. That claim was accepted.

4 The first item of work on the day the worker suffered the subject injury was to attend a pre-work sales training session. He resided at Para Hills West. The training session was at Walkerville (TB 52, 55). It was 7.15 am. After getting dressed he went out to start his car but the battery was flat. He had left his two-way radio on overnight. He tried to push-start the car. That is when he felt the injury to his back (TB 22).

5 The worker had not commenced his journey. However the worker's counsel submitted the worker's place of employment was, for present purposes, the company car. When he entered the car he was at his place of employment and his employment had in fact commenced.

6 I do not have the contract of employment between the employer and employee, if one exists (tr 11). I am left with the above material to form my conclusion. I set out s 30 of the Act:-

"30. (1) Subject to this Act, a disability is compensable if it arises from employment.

(2) Subject to this section, a disability arises from employment if-

(a) in the case of a disability that is not a secondary disability or a disease-it arises out of or in the course of employment; or

(b) in the case of a disability that is a secondary disability or disease-

(ii) the disability arises in the course of employment and the employment contributed to the disability.

(a) attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and

(b) attendance at the worker's place of employment during an authorised break from work; and

(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; and

(d) attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and

(e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability.

(4) However, a disability does not arise from employment if it arises out of, or in the course of, the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.

(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

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

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

* 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

* 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 disability.

and there is a real and substantial connection between the employment and the accident out which the disability 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."

7 The worker submitted the issue was one of fact and degree determined on a case by case basis. Reliance was placed on Peet v. Workers Rehabilitation and Compensation Corporation (York Civil Pty Ltd) (unreported) Full Supreme Court, delivered 14 August 1996, Judgment No S5757. There Doyle CJ stated:-

"... It is clear that the course of employment extends beyond performance of the actual work or duties that a worker is employed to do, and beyond things that the worker is obliged to do. The end result is, as Dixon CJ said in Whittingham v. Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29 that:-

`... 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 employment.'

In Henderson v. Commissioner of Railways (WA) (1937) 58 CLR 181 at 294, Dixon CJ said:-

`Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer's premises and work as an ordinary member of the public is another matter of weight. ...'

These words have often been used by courts as a guide to the application of the statutory provision, despite the fact that the introductory words identify a specific factual setting.

This approach was approved by the High Court in Hatzimanolis v. ANI Corporation Ltd [1992] HCA 21; (1972) 173 CLR 473 at 479, but it is again to be noted that Dixon CJ and the Court in Hatzimanolis were dealing with an injury sustained during intervals between work.

In Danvers v. Commissioner for Railways (NSW) [1969] HCA 64; (1966) 122 CLR 529, Barwick CJ said (at 536) that the approach in Henderson `should be applied liberally and practically'.

It is also clear, as the High Court indicated in Hatzimanolis, that the approach of the court must be informed by an understanding of contemporary practices of workers and employers, and the contemporary understanding of what is incidental to employment.

In Hatzimanolis the High Court paid particular attention to injuries occurring between periods of actual work. The majority said (at 483 - 484):-

`For the purposes of workers compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home ... Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.'

A reading of Hatzimanolis makes it plain that it is more difficult to conclude that something which occurs, not in an interval within a working period, but outside or after working hours, occurs within the course of employment. However, there is no rigid rule, and the discussion of Danvers in Hatzimanolis makes it equally plain that something which occurs quite outside working hours may be `within the current conception of the course of employment' (CLR at 483).

And one must always bear in mind, as the majority said in Hatzimanolis (at 484):-

`In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen": Danvers (1969) 122 CLR at 537'."

8 The issue in Peet's case was whether the worker had suffered a work injury. He had been sent to a specialist for examination. The specialist sent him for x-rays. Later still while attending to collect the x-rays, he slipped and injured his knee. The court held that there was not the requisite connection between that incident and the worker's duties of employment.

9 In State of South Australia v. Brophy (1997) 68 SASR 97 the worker was a policeman journeying home at the end of his normal working day. He was using the police issue motorcycle and was in his uniform. He had a police radio on. He was not being paid during the time of the journey. As here, the worker's counsel argued the worker was, while riding home on his motorcycle, "at the office" (at p 8). It was also argued that he was under an ongoing obligation to "police" whether on shift or not. Doyle CJ concluded against the injury being suffered in the course of employment. The journey was not undertaken in the sense of begun or commenced in the course of carrying out duties of employment. It was a journey commenced for a private purpose, namely travelling home. Further Doyle CJ concluded that s 30(5) of the Act was intended to deal exhaustively with a disability arising out of or in the course of employment and was intended to exclude any reliance on s 30(2)(a) of the Act. In any event no claim could have succeeded under the general proviso.

10 In CSR Ltd v. McCourt (unreported) Full Supreme Court, delivered 27 November 1997, Judgment No S6417 the worker was a tree feller in the South East. The team he was a member of would meet at a depot prior to leaving for the point in the forest where they were to perform their felling. While awaiting the vehicle they would attend to the equipment they would use for that day's work. They were eventually picked up by the vehicle to be taken to their forest site. In the course of that journey the injury occurred. The worker argued the journey was undertaken "in the course of carrying out the duties of employment". The court upheld the worker's claim because the journey was reasonably incidental to the performance of the job, it was part of the respondent's daily work routine to report to the depot each morning and there attend to maintenance, transport in the company vehicle to the forest site was in the interests of the efficient operation of the employer's activities and lastly, and significantly, the workers were remunerated for a journey of that type.

11 In McCourt, the court appears to have approved the decision of Smith v. Stages (1989) 1 AC 928. Smith v. Stages was also followed in Gross v. WorkCover Corporation/NZI Workers Compensation (Prestige Linings) J.D.38/1998. In Gross, the worker had been picked up at his residence by arrangement with his employer to journey to a building site. In the course of the trip he suffered injury. The Tribunal expressed the view that while the conditions of "in the course of employment" may be met where the worker is obliged by his contract of service to use the employer's transport, the fact that the worker was under no compulsion to use the transport provided by the employer was decisive of the issue and the claim failed. In so concluding the Tribunal quoted the following passage from Smith v. Stages (at pp 955, 956):-

"An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment, but, if he is obliged by his contract of service to use the employer's transport, he would be normally, in the absence of an express condition to the contrary, be regarded as acting in the course of his employment while doing so."

12 The case before me is not one where the worker was entering his company vehicle for the purpose of attending a site. If that had been so then he may well have satisfied the test. The circumstances were that the worker was required that day to commence work at Walkerville where a sales training session would be held. The purpose of using the vehicle was to make a journey excluded from entitlement by s 30(5) of the Act. Nothing else about the journey or the use of the vehicle made it other than a "private occasion" using the concept employed by Doyle CJ in Brophy (above cited).

13 As indicated in Mr Gabrynowicz's, counsel for the respondent, argument the character in which the company vehicle is used will not always be employment related. If the terms of his use of the vehicle allowed him to use it over the weekend then it could not be said when engaged for recreational or other purposes it had an employment connection (tr 14, 15). Therefore the proper test is to address the nature of the usage at the time the injury occurred. Applying that test then the injury was not

sustained within the provisions of s 30(2)(a) or the provisos in s 30(5)(a) or (b) of the Act. The worker's claim is dismissed.

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.