Mason v State of SA

1. In 1983, the Applicant first drove the Verran bus route, with the terminus at Rudall, travelling Verran, to Cleve, to Rudall. That bus was housed at Rudall.

2. In 1987 the Applicant was hired to perform the Darke Peak run, being picked up by the Cleve bus from her home at Rudall, and taken to the Kielpa terminus to collect the bus.

3. In 1992, the route was changed, making way for a small Darke Peak bus to connect with the Applicant's bus at the Kononda terminus. At that time the Applicant's bus was housed at Rudall.

4. Over the course of the Applicant's bus driving duties with the Respondent, the route was on occasion changed in order to most efficiently organise the School bus run in order to suit the changing needs of the families within the School catchment area. The Cleve Area School did not have the power to make that change at the time, and that the directive originated from a Mr Brian Hudson, who was in charge of bus routes in the Education Department at the time.

5. In 1993, the bus route was changed again, with the terminus being at the Schumanns' property.

6. In 1997 the terminus was changed to the Evans' property, and the bus was housed at that property. That was the terminus that the Applicant was driving from at the time of the subject injury."

4 The worker described that final arrangement in the following terms (AB 11):-

"2. I drive one regular route on the same bus. The bus is left overnight at a remote location and I need to use two private vehicles to be able to complete the run. In the mornings, I drive my vehicle to the terminus, where I leave my vehicle and then commence my bus-driving duties. The route ends at the School in the morning. I leave another vehicle at the School so that when I reach the School I can then drive home. When the end of the school day approaches, I then drive back to the School, collect the School bus, leave my vehicle by the School and drive to the terminus, dropping students off along the way. At the end of the run I leave the School bus at the terminus and pick up my first vehicle and then return home. This is because I am not allowed to drive the bus home."

5 Another indication of the engagement arises from the calculation of her salary (AB 13):-

"7. I was paid fortnightly upon production of a log return (Form EDO37). The method of payment is calculated upon the route distance travelled on a daily basis, in accordance with prescribed rates.

8. In addition to this, I am paid an allowance for about one-half of the necessary use of my private vehicle. The allowance however is quite minimal and does not properly recognise the fact that I have to use two private vehicles to be able to complete the run."

6 There are details in the documents of the route taken in the "Evans" bus run (AB 17 - 21). However I have been unable to determine whether the worker was remunerated for the part of the route where she drove the bus only or was remunerated for the whole route and then an additional amount to offset her provision of a private vehicle. As such I can draw no conclusion in this regard.

7 The evidence is that the road surfaces on the day in question were in a shocking condition and that this was nothing unusual (AB 13, 14). This became a part of the argument raised by Mr Saies, counsel for the worker. I accept the worker's evidence in this regard, (see AB 15, para 20).

8 Brian Hudson provided a statement (AB 22). He states (AB 22 - 23):-

2. School bus routes generally operate from a designated school, around a specified bus route and returns to the designated school. In situations where a bus may operate for a significant part of the journey without collecting passengers, the Department may choose to house the bus overnight at the first pick up. The bus driver is thus reimbursed for the use of their private vehicle (at the rate determined from time to time by the Commissioner for Public Employment) for the kilometres travelled between the school and terminus where the bus is housed overnight. Bus drivers are not reimbursed for `home to office' but are reimbursed the distance that the bus would have travelled between the school and the terminus, via the shortest practical route. ..."

9 Mr Hudson then explains the way in which the route taken by the school bus is set (AB 23):-

"5. School bus routes are determined after consultation with local councils as to the condition of roads. As a general rule, District Councils are requested to advise the Department that a road is suitable for use as a school bus route. Similarly, if a road deteriorates to the extent that it becomes dangerous and/or is causing inordinate damage to the vehicle/s used in (sic) the road, then the driver should advise the Principal of the school of this. The Principal may then approach a District council to repair the road, or may recommend the bus route be changed. To my knowledge neither of these actions has occurred in this case in respect to this bus route, and in particular, in respect of the road where the accident occurred."

10 The "Department of Education, Training and Employment Administrative Instructions and Guidelines (Schooling Sector) Section 1: General School Procedures" reads as follows (AB 32 - 33):-

Departmental buses are to be garaged at schools overnight and during the day, unless it is more appropriate for the department to have the bus garaged at the terminus for economic reasons.

In accordance with recognised industrial principle, employees are required to attend a work place designated by the employer. The cost of travel from the employee's home to the work place is the responsibility of the employee.

The designated work place for drivers of departmentally owned and operated buses is either the school, or the bus terminus when a bus is garaged away from the school.

Drivers are not permitted to drive buses between the school and home, the terminus and home, or to and from the school or terminus to any other place for personal use.

Drivers of departmentally owned route service buses are paid fortnightly on the production of a log return (Form ED 037). Payment is based on the route distance travelled on a daily basis in accordance with the prescribed rates. If a bus breaks down on route the driver is paid as for a normal run. If the driver is required to spend time with the bus, beyond that time which the normal run would have taken, then an hourly payment should be made. If a driver presents him/herself to drive a bus and the bus is immobile and a spare bus is not available then the driver is paid for a normal run.

Drivers are not paid for use of private vehicles for travel between home and school or home and terminus, except in the following circumstances:

* where a private vehicle is driven from the school along a lineal route to the bus terminus to avoid the bus being double run over the route. In this instance the driver would be eligible to be paid car mileage for the distance travelled from school to the terminus in the morning and from the terminus to the school in the afternoon. Where the distance between the driver's home and the terminus is shorter than the distance from the school to the terminus, payment is to be based on the shorter distance.

* where a driver drives a bus from the terminus to the school and uses a private vehicle to return to the terminus, payment is to be based on the distance from the school to the terminus. Where the distance between the school and the driver's home is shorter than the distance between the school and terminus, payment is to be based on the shorter distance."

11 Another document described as "Bus Policy", presumably written by the respondent, was tendered (AB 43). It included the following:-

DETE owned and operated buses are allocated to a specific school and the Principal of that school is responsible for their day to day operation."

In the Cleve area, the designation of the relevant region, all buses are housed at the Cleve school except one as indicated at "Evans" and one at Rudall (AB 53).

12 The relevant provisions are contained in s 30 of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). Two issues arise, namely whether this was a "journey" from employment and if so whether the worker has established any of the provisos in subs (5). The provisions of subs (5) and subs (6) read as follows:-

"(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 of 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)."

13 In TransAdelaide v Karanicos (unreported Full Supreme Court) (1996) SASC 5536, the Full Supreme Court dealt with the meaning and application of s 30(5). Doyle C.J. stated, "in the course of employment", could not notionally be limited to what the "employee is by the terms of his engagement express or implied contractually bound to do", (par 14). Also, "that subsection (5) is a qualification on subsection (2), and that if a journey is involved, one must turn to subsection (5)" (par 20). He continued (par 22 - 23):-

"22 ... I think that the approach to be taken is broadly similar to that outlined by Barwick CJ in Danvers v. Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 at 536. The test is to be applied in a liberal and practical manner. ... I consider that the following remarks of Dixon J in Whittingham v. Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29 are apposite: `... As the test is not, and could not be, whether the employee was obliged to act as he was doing when the accident occurred, the inclusion of things arising out of the actual performance of his duty was, no doubt, inevitable, but, as a result, 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 practice, must be considered together with the conditions of the employment.'

23 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. ..."

14 His Honour then made the distinction between a journey that resulted from the worker's employment and a journey undertaken while carrying out the duties of employment. In the case of a person attending a medical appointment at the employer's direction relating to a worker's compensation claim, one could not ordinarily say that that journey involved the carrying out of the duties of employment. It was unrelated to the performance of those tasks which the worker, in that case a cleaner, was employed to do. But the decision reinforces that the approach depends on the given circumstances of each case.

15 In State of South Australia v Brophy (1997) 68 SASR 97, a police officer wearing his uniform and riding a police motorcycle met with an accident when journeying home from his station at the end of his shift. Police officers are required by police regulation to perform policing duties whether on or off duty. He was not being paid for the time spent on this journey.

16 Doyle C.J. rejected the worker's claim, stating, (at 103):-

"Section 30(5)(a) requires that the journey be undertaken in the course of carrying out duties of employment. To my mind it is unclear whether that means that the journey must begin or be initiated in the course of carrying out duties of employment, or whether it is a reference to the character of the journey as it unfolds. In the present case, in my opinion, 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 that commenced for a private purpose, travelling from the place of employment to the worker's home. ..."

17 Doyle CJ, without deciding, suggests that subs (5) is intended as an exclusive code in relation to a disability that arises out of or in the course of a journey. That also operates to exclude reliance on subs (2)(a): (see his Honour's comments at 101, 104, 105). This matter was emphasised by Ms Pike, counsel for the respondent, (31). She contended with some force that these are definitional provisions and must be employed in their ordinary and natural meaning (32): see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 174 ALR 626, at par 52).

18 Consistent with the observation of Doyle CJ that subs (5) is to be treated as exhaustive of the situation, the question must be asked whether this was a journey in the sense used in the Act. That is, a journey between home and employment cf Vetter v Lake Macquarie City Council (2001) 178 ALR 1 at par 80 - 81. That raises the assumption of a place of employment. A place of employment in the usual sense may be ubiquitous in certain circumstances and this may be one of them. However, if this is not one of the journeys addressed in subs (5)(b), then leaving aside for the moment the journeys addressed in subs (5)(a), the question must be asked whether this is an injury in the primary sense, namely under s 30(2).

19 In Nogare v Mosaic Flooring Co Ltd (1965) SASR 120, the worker was killed in a road accident while travelling from Adelaide to Mt Gambier to commence work as a terrazzo worker for the respondent on a job in Mt Gambier. Napier CJ employed the test laid down in St Helens Colliery Company Limited v Hewitson (1924) AC 59 at 71, namely whether the deceased was engaged in doing something that he was employed to do, something in discharge of a duty to his employer directly or indirectly imposed upon him by his contract of service. I reiterate what Doyle CJ said was the test in Karanicos at par 22, but take the view the Nogare decision is instructive.

20 In Nogare's Case these conditions were absent. His Honour, in rejecting the widow's claim, stated his views as follows (122 - 123):-

"This is the test applied by Lord Maugham in his opinion (with which the other Law Lords agreed) in Blee v. London & North Eastern Railway Co (1938) AC 126 at 134. As Lord Atkin puts it, at p 130:-

`There can be no question that had the workman been going to his ordinary work in the morning he would not have been entitled to compensation for injury suffered from street risks incurred in transit. His time in such a case is his own; he arrives at the scene of his labours as he pleases; and though it is his duty to present himself at the appointed time, yet his "employment" does not, in ordinary circumstances begin for the purposes of the Act until he reaches the place where he is employed.'

Then his Lordship goes on to distinguish the case of others, for example, `the messenger boy, the postman, the canvasser, employed to travel on the streets,' who may be `injured in the course of the employment,' and are entitled to compensation `none the less that they are exposed to the risk in no higher degree than the ordinary wayfarer.'

It appears that the workman in Blee's Case was obliged by the terms of his contract to obey an emergency call at any hour. He was paid from the time he left home, and was expected to proceed with reasonable despatch to the place where his services were required. He was knocked down by a motor car, and sustained injuries from which he died. The House of Lords held that there was evidence upon which the Judge could hold that the accident had arisen out of and in the course of his employment. The fact that the workman was paid from the time he left the house, was taken into account as evidence supporting the inference that the time was his master's, and that he was under obligation to proceed with reasonable despatch by the reasonably shortest route. It afforded evidence that from the time he left the house the workman was `actually engaged in the performance of his contract of service' (p 132). As Lord Maugham says:-

`The fact that the payment of the workman was calculated from the time when he left home is not, I think, alone a sufficient reason for holding that his employment began at that time; but in the case of an emergency call it is, I think, a sufficient ground for taking the view that he was bound as from the moment when he left his house to proceed with all reasonable expedition by the nearest available route to the place to which he had been summoned.'"

21 The nature of that payment from the time the worker left the home is made clearer in the decision of Chamberlain J in Nogare's Case. The deceased was entitled to allowances for travel, (as here). The fact that he was permitted, if he chose, to travel by his own car rather than the transport provided by the employer made the difference. It did not result in any legal obligation on either party. The employer had no ground of complaint if the worker had used any other means of transport or travelled by any other route (123). Contrasting the case before me, the worker's car and the route taken were express details of the contractual arrangements between the respondent and the worker. I note the strong dissenting judgment of Travers J.

22 In Dunning v Binding (1932) 25 BWCC 361, the Court of Appeal in England dealt with a commercial traveller. The issue was whether given the nature of his work, his employment commenced when he left his home and ended only when he returned to his home. Applying St Helens Colliery Company Limited v Hewitson (above cited), the Court concluded this depended on whether the worker was doing something in discharge of a duty to his employer imposed upon him by his contract of services. There could be no hard and fast rule for commercial travellers or any other group for that matter (366). It depended on the characterisation of the activity at the exact time of the injury. In that case Lord Hanworth MR stated (367):-

"... But the learned County Court judge must direct himself in accordance with the cases. If he finds upon the facts before him that the man had gone to the station not because he was doing some work or making some call for the purposes of the employer's business, but solely because it was the means of transit which he had chosen to reach the home of his choice, it would not be possible then for him to hold that the matter was one which was done in the course of his duty or in discharge of his duty to the employer. ..."

"... I would only add that the question of when an employment does or does not come to an end is one of degree or fact. Lord Collins in Smith v. South Normanton Colliery Co Ltd (1903) 1 KB 204; on that point said this:-

`There must come a time when the workman can no longer be said to be engaged on the employment. It appears to me to be a question of fact where that line is to be drawn.'"

24 In Chadburn v The Queen Elizabeth Hospital (North Western Adelaide Health Service) Print No JD47/1999 the worker, an apprentice boiler attendant, suffered an injury in a motorbike accident while travelling from Hilton to TAFE Regency Park to attend classes as part of his apprenticeship. He was paid as for normal hours of work by the respondent for attending those classes. The worker conceded he was not within the situations in s 30(5) of the Act, but argued he came within the provisions of s 30(2). Parsons DPJ found against that proposition. In doing so Her Honour stated (p 5) as follows:-

"In its current form, compared to its pre-1994 form, s 30 limits the circumstances in which a disability will be regarded as compensable when it arises out of or in the course of a journey. The first alternative which relates to a journey undertaken `in the course of carrying out duties of employment' may apply to a journey between any point of departure and any destination at any time, as long as it occurs whilst carrying out tasks under a contract of employment or performing activities related to that which the worker was employed to do. ..."

25 Her Honour, on the basis of the dicta of the Chief Justice in both Karanicos and Brophy classified subs (5) as a code and stated (p 6):-

"I conclude that in the instant circumstances where the worker was injured in a journey from his place of residence to an educational institution which he was attending as part of his apprenticeship, the compensability of the disability will not be established by reliance upon subsection (2)(a), but is dependent upon the worker establishing the requirements of subsection (5). ..."

26 As an alternative reasoning, assuming subs (5) was not an exclusive code, Her Honour addressed the alternative argument and stated ( 6):-

"... In mounting this argument, Mr Meegan relied upon the fact that the worker was being paid at the time of the journey accident and was travelling to an educational institution pursuant to his contract of apprenticeship. Although receipt of wages was regarded by Lord Lowry in Smith v. Stages and Another (1989) 1 AC 928, as indicating that an employee is travelling in the employer's time and for the employer's benefit and therefore to be acting in the course of the employment, the judgment of Lord Goff highlighted that this will not be decisive. Lord Lowry stated at p 955 as follows:-

`The paramount rule is that an employee travelling on the highway will be acting in the course of his employment if, and only if, he is at the material time going about his employer's business. One must not confuse the duty to turn up for one's work with the concept of already being "on duty" while travelling to it.'"

27 In The State of South Australia (Department of Education and Children's Services) v Attwell-Gill Print No A105/1996 the worker was travelling from his home in Barmera to Amata, his place of employment, when he was involved in a motor vehicle accident. While employed at Amata he lived in accommodation subsidised by the respondent. While travelling between Barmera and Amata he was paid a travel allowance of two days full pay. The reason why he was on the section of the road that he was on when the accident happened was to provide transport to another teacher bound for the same destination. But for this, his path would have been by better roads.

28 Parsons DPJ considered the circumstances, particularly in light of the context approach described by Doyle CJ in Karanicos (above cited). She stated (8):-

"... The extreme remoteness of the locality of the school at which the worker was employed to teach has resulted in special conditions applying to his contract of employment. Had he been a teacher in the metropolitan area he would have been required to commence his first duty day for term 3 by presenting to teach at his school on Monday 26 July. Instead the start of the school term was delayed for two days until Wednesday 25 (sic) July and the worker was authorised to use his first two duty days for that term to undertake the journey from his place of residence to his place of employment. He was paid for those two days as duty days. This is a recognition that travelling to such a remote location is necessarily incidental to carrying out the duties of a teacher at Amata. The necessary link between the journey and the employment described by Doyle CJ in Karanicos (supra) has been established. ..."

29 In The Corporation (The City Swim School) v Rowberry Print No A1/1996 the worker agreed with the first employer, the appellant, to receive and collect her messages throughout the day at home. They would be left there for her by the first employer. While travelling from a work session with the second employer, the Education Department, to commence work with the first employer she deviated to her home to collect any such messages. During the course of that deviation she suffered a motor vehicle accident.

30 Gilchrist DP determined the fact by reaching a conclusion as to the purpose of the trip. He stated ( 5):-

"If one thinks of the worker's home as simply a designated place at which she was required to attend, it becomes apparent that in embarking upon the journey to attend at that place, the worker was going about her employer's business. The fact that the designated place also happens to be the worker's place of residence, in my view, clouds the real issue. The worker did not go to her home simply because she wanted to go home. She went there, because she was obliged to do so by reason of the terms and conditions of her employment. The fact that the designated place happens to be the worker's place of residence is ultimately, not to the point. ..."

31 On the question of whether there was a "real and substantial connection" between the employment and the accident out of which the disability arises, (subs (5)(b)(ii)), His Honour stated (6):-

"... I think the words `real and substantial connection' contemplate something more than simply `but for'. The connection will obviously be made out if the worker sustains an injury whilst driving a company vehicle at the specific direction of the employer and a defect in that vehicle causes the accident to occur. But in less obvious cases, I would have thought that it would require something more than being able to say, that had it not been for the worker's employment, the accident would not have happened. And, it seems to me, that that is all that can be said in this case. This is not a case where the employer has stipulated the time at which the worker was obliged to attend her place of residence for the purposes of collecting these messages or that the employer has stipulated the route by which the worker was to drive from her home to her place of employment. Accordingly, whatever connection there was between the worker's employment and her accident, I fail to see how it can be described as `real and substantial'."

32 In Nebl v CGU Workers Compensation (SA) Pty Ltd (DV & DM Stribing) (2000) SAWCT 27, Thompson ADP dealt with a case of a worker leaving a TAFE college to journey home but via his employer's premises to, inter alia, check security and pick up the mail. His Honour stated (par 17 and par 18):-

"... By going to the workshop and office to check what was there, the worker must be regarded as going about his employer's business, and carrying out the `duties of employment'.

... It is sufficient that a purpose of the journey is to carry out the duties of employment. As a matter of common sense many journeys have more than one object or purpose. ..."

33 In Curran v Wills Industries (2000) SAWCT 36 the worker had to journey between her residence at Kalbeeba outside Gawler to her employment in Watervale Drive, Greenfields. On the way at the request of the employer she deviated to the Parabanks Shopping Centre, some five kilometres from Greenfields, to collect the employer's mail from a post office box. Before reaching that post office box she suffered a motor vehicle accident. Cawthorne DPJ stated (par 13):-

"In the circumstances it seems to me that in this case the journey had a dual purpose namely delivery of the worker to her workplace and the collection by her of the employer's mail for delivery at that same destination. Whilst there may have been benefits to the applicant in this arrangement there was also a benefit to the employer namely the collection of its mail presumably in a cost effective way. ... Clearly, it seems to me, the worker (to borrow the words of Doyle CJ in Karanicos) in undertaking the journey was performing her 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. Bearing all relevant considerations in mind and viewing the journey in context I am led to the conclusion that in the circumstances of this case the applicant's journey was undertaken in the course of carrying out the duties of her employment although it also had the effect of transporting her to her place of work."

34 Lastly in Owen v Department of Education Training and Employment (2001) SAWCT 104 the worker, the assistant principal at a high school, suffered injury when riding her bicycle home after school had finished for the day. The purpose of riding home on that occasion was to pick up her car and drive it back to the school to pick up folders and files already prepared and too bulky to carry on her bike to continue her work on them at home over the weekend. In addition, on her return to the school she would have seen to the security of the property before leaving. Cawthorne DPJ again approached the matter with reference to Karanicos. He concluded the journey was not merely a journey between her place of work and place of abode, but rather included a purpose to enable her to complete tasks at home on the evening in question and over the weekend. Therefore there was the necessary link between the journey and her employment to satisfy s 30(5)(a). That is to collect her car.

35 The definition of "place of employment" in s 3 states:-

"`place of employment' means 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."

36 As I have stated above, this somewhat begs the question as to the function of the trip from Rudall to Evans Farm taken by the worker. Was it a journey between her place of employment and home. It is correct to say her first obligation under her contract was to proceed to her vehicle wherever that was stored. This was subject to the directions from time to time by the Department or its agents. The argument put by Mr Saies that the Department would locate the vehicle according to variable and changing economic considerations is well made. In the sense employed here, "place of employment" is ubiquitous on the route including to and from the places that the bus has been directed to be left.

37 In Karanicos (at par 23) the Chief Justice stated (following on from the quotes in par 13 hereof):-

"23. ... 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."

38 I have considered whether the trip to the terminus at the start of the day could be covered for injuries but the trip from the terminus to home not covered. There is an inherent anomaly in such a conclusion. The better conclusion is that if either satisfies the requirements then both do.

39 For the purpose of this case I will assume without deciding this was a "journey". On this basis, this case is close to the border between those covered and those not covered. In the end the weight of the following factors favour the category of those the legislation intends to cover:-

(a) The fact that when initially engaged the bus was housed at Rudall and the worker commenced the run from that point (viz Agreed Facts par 1 and par 2).

(b) The fact that due to the extraordinary remoteness and distances on the Eyre Peninsula and the economics and efficiencies which were varied from time to time, the employer reserved the right to direct where the bus was to be left (AB 22, 23, 32, 33, 43). Thus to proceed to the place the bus was left at became the first duty of the contract.

(c) The fact that the employer paid an amount towards the cost of the out of pocket expenses of the travel (AB 13, 32). It is not the case that journeys to and from work are reimbursed by employers in the normal scheme of things.

(d) The terms of the contract implicitly dictated the route the worker had to take between home and the terminus (AB 33). This led to the worker having to use the segment where she had her accident irregardless of her own preference in the matter.

(e) The purpose of this trip was to locate the bus at a point dictated by the contract (ie Evan's farm). It was therefore travel in discharge of the terms of the contract. This employs the contextual approach to the characterisation and distinguishes the circumstances from the mere journey described in s 30(6). It would place the journey in the group described by Doyle CJ in Karanicos in par 23 and Napier CJ in Nogare at 122 - 123. It appears to conform as best as can be with the tests indicated by the decisions of this Tribunal and detailed above.

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.