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[2006] SAWCT 11
General information, not legal advice.
Workers Compensation Tribunal (SA)
2006-02-16
Mr J
Original judgment source is linked above.
1 The appeal concerns whether the learned President was right to have concluded that the appellant, Michael McGuire, an employee of Peter Page Holden Pty Ltd, had not established an entitlement to compensation pursuant to the Workers Rehabilitation and Compensation Act 1986.
Background facts
2 Mr McGuire sought compensation in respect of injuries received by him in a motor vehicle accident that occurred at 5.10 pm on 18 October 2004 on a road adjacent to his employer's premises. His claim was rejected by the respondent, the WorkCover Corporation on the sole ground that the injuries did not arise out of or in the course of his employment.
3 The matter thereafter proceeded through the dispute resolution process and culminated in a hearing before the learned President that proceeded on a brief schedule of agreed facts.
4 These established that employees at Peter Page Holden took meal breaks at various times throughout the day. In accordance with this practice Mr McGuire did not have set times for meal breaks nor was he required to seek specific permission to leave the employer's premises.
5 As there was no canteen upon the employer's premises it was commonplace for Mr McGuire and other employees of the employer to go to a shopping complex across the road to purchase refreshments.
6 Mr McGuire frequently attended to his own private business during work hours and sometimes in connection with this he visited the shopping complex. He was also known to go there on business for his employer, attending to the registration and transfer of vehicles, banking, posting of mail and the like.
7 Mr McGuire sustained head injuries in the motor vehicle accident and has no independent recollection of it or the events leading up to it. He has no recollection of why he crossed the road when the incident occurred.
8 All that is known is that immediately prior to the accident Mr McGuire had informed a fellow employee that he was going across the road to get something to eat and had been incidentally requested by another to check the ticket of a X-lotto syndicate in which she had participated with other employees.
9 The learned President was not prepared to draw an inference that on the occasion when Mr McGuire had his accident he was visiting the shopping complex to conduct some business on behalf of the employer. Nor was he prepared to draw an inference that the employer had induced or encouraged him to go to the shopping complex.
10 Having made the bare findings set out above the learned President referred to various authorities and then stated that certain statements of principle contained in Werner v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Australian Communication Exchange Limited) [2001] SAWCT 133 comprised a correct statement of the law and that it was "more apposite to the agreed facts in this matter than with the cases relied upon by Mr Costello". (Judgment par 23)
11 He found "that the link between the worker's activities at the time of the incident and his employment was too tenuous to be fairly said his injury arose out of the course of his employment". (Judgment par 24)
The appellant's submissions on appeal
12 Mr Costello contended that the learned President should have found that the employer had encouraged Mr McGuire to cross the road to get something to eat. He said that the fact that the employer knew that this was a common practice and did nothing to discourage it was sufficient in all the circumstances to imply that the employer had induced its employees to regard this as an incident of employment and therefore within the course of their employment.
13 Next it was said that in any case, in determining the outcome of the case he applied the wrong legal test.
14 It was said that the learned President erroneously elevated the decision of Werner (supra) to a statement of legal principle that governed the facts of this case. It was contended that as a result the learned President focussed too much on what Mr McGuire was actually employed to do. Next it was said that the facts of Werner were clearly distinguishable, and that if guidance was to be sought from earlier authorities cases such as Park v Peach [1967] VicRp 60; [1967] VR 558 and Russo v WorkCover Corporation/Mercantile Mutual Insurance (SA) Workers Compensation Ltd (Mescoe and A Savas) JD70/1999 were of much greater assistance.
Consideration and conclusions
15 The authorities relied upon can be summarised as follows.
16 In Park v Peach a taxi driver was killed when struck by a car when returning to his cab after purchasing a newspaper. The argument, that because the newspaper had nothing to do with his work, the deceased driver was not in the course of his employment when he died, was rejected. It was held that doing what he did was so incidental to his employment as to fall within the concept of "in the course of employment."
17 Russo (supra) also concerned a taxi driver. Mr Russo positioned his taxi near a shopping centre in the hope that he might find the time to buy some food. Having accepted a booking nearby and realising that he could respond in a timely way and still have sufficient time to purchase and eat some food he alighted from his cab and began to walk towards a shop and in doing so he tripped over a concrete barrier. It was held that Mr Russo's conduct was a natural incident of his employment and his claim for compensation under the Act succeeded.
18 In Werner the worker tripped and fell when she was walking in the city to go to a bank to get some funds that amongst other things were to cover some upcoming business expenses. She then intended to go to a coffee shop, buy some lunch and do some work related reading. It was argued that there was a sufficient work related flavour to these activities to bring them within the concept of "in the course of employment". This was rejected. It was held that the activities were primarily directed towards personal need and that the link with employment was too tenuous to sustain a claim for compensation under the Act.
19 As was pointed out in Russo, there is a danger in referring to past decisions in cases such as these of seizing upon an expression used and applying that as the relevant legal test in lieu of the test postulated by the relevant Act. However, that does not mean that past authority is not helpful. Whilst it goes without saying that each case is to be decided on its own unique facts, some guidance can be had in viewing how a particular provision is applied in a particular factual scenario.
20 In our view, that is all that the learned President did here.
21 The learned President's reasons disclose that he was aware of abundant authority supporting the proposition that "in the course of employment" extends beyond carrying out the duties of employment. Viewed in context, his reference to Werner, in our view, reflected no more than his citing an example of a case that demonstrated that not every activity that bears some connection with employment is sufficient to be embraced within that concept. He concluded that this too was such a case and that whatever connections there were with Mr McGuire's employment here, they were not sufficient to bring him within that concept.
22 Werner was decided on its own facts, as was Park and Russo.
23 All that can be gleaned from them is that they are all examples of what Dixon J said in Whittingham v The Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29:
"...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 the employment."
24 Underpinning Mr Costello's submissions was the notion that a correct application of the relevant legal principles to the facts in this case led to the probable conclusion that Mr McGuire's accident occurred in the course of his employment.
25 We disagree.
26 There were some factors pointing that way. Mr McGuire's occupation was one. Another was the proximity of the shopping complex and the frequency with which he and other employees went there. Beyond that however, the connections are slight. The facts concerning the lotto ticket were equivocal, as was evidence about Mr McGuire's prior attendances at the shopping complex.
27 Mr McGuire bore the onus of establishing a sufficient link between his activities and his employment and the obstacle confronting that was the absence of cogent evidence to support that link.
28 It was established that he left the employer's premises to obtain a meal, but beyond that we know little else.
29 If there was evidence to support a finding that Mr McGuire had specifically gone to the shopping complex in lieu of other alternatives because of its proximity to his employer's premises, that he intended to only be absent from the employer's premises for a brief period, and that he had put in place measures to ensure that he was contactable whilst absent from the employer's premises, it might have been relatively easy to reach the conclusion that in the circumstances the activity of crossing the road was so incidental to his employment as to fall within the concept of "in the course of employment."
30 But on the evidence adduced such a conclusion would be the product of pure speculation. The evidence is just as consistent with Mr McGuire having chosen to go to the shopping complex, not because of its ready accessibility to the employer's premises but, because of what it had on offer. It is also consistent with him intending to be absent from the employer's premises for a considerable period of time, not making any arrangements to enable him to be contacted and not expecting to be contacted during his period of absence. On these facts the only reasonable conclusion to reach would be that in crossing the road to go to the shopping complex Mr McGuire was attending to his own business and that the activity did not occur in the course of his employment.
31 The difficulty for Mr McGuire is that on the bare facts provided no one is to know where between these two extremes the truth lies. As was said by Kitto J in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305: -
"One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed."
32 That fact, that reason special to the case, that basis for feeling an actual persuasion of a sufficiency of connection between the activity and Mr McGuire's employment was absent here. In our respectful opinion, the learned President had no alternative but to conclude as he did. The appeal should be dismissed.
McGuire
Workcover Corporation/Vero Workers Compensation
(1931) 46 CLR 22
(1959) 101 CLR 298