Nebl v Cgu Workers Comp

3 I am firmly of the view that the Statement of Agreed Facts was precisely that. However I took the tender of the two records of interview de bene esse in order that the matter should proceed on the allotted date - the worker being a paraplegic and having come from Strathalbyn for the hearing. If counsel conclude that the Statement of Agreed Facts does not represent their client's case, it is incumbent on them to advise both the Tribunal and their opponent forthwith, and it should certainly be done before the commencement of the trial_._ I have decided to admit the two records of interview into evidence. I also had the advantage of hearing the applicant give evidence. I accept him as a witness of truth.

4 The worker was an apprentice motor mechanic. He resided and worked at Strathalbyn. On Wednesday 4 August 1999 in fulfilment of a term of his employment he attended the O'Halloran Hill TAFE Trade School.

5 At about 5.00 pm the same day he left the TAFE to return to Strathalbyn on motor cycle.

6 During the course of this journey the worker was involved in an accident which has rendered him a paraplegic.

7 Earlier in the week ie on Monday 2 August 1999 the employer was ill. On that date he requested the worker to attend the employer's business premises each evening after Trade School to check security, the telephone answering machine, facsimiles and mail, and report to the employer should any communication require the employer's attention. The employer was still ill on Wednesday 4 August.

8 The employer also gave the worker a key to gain access to the premises for the above purpose. The worker did not have his own key. The worker did in fact visit the premises on the Monday 2 and Tuesday 3 August 1999. Had the worker not been injured, I find that he would have attended the workplace to do whatever the employer had instructed. After that he would have gone to his residence.

9 The respondent's case is that (1) the worker was on a journey "home" ie to his place of residence. The journey from the O'Halloran Hill TAFE to Strathalbyn is properly characterised as a journey to the residential home of the worker. Anything else was incidental to that main purpose.

10 The respondent's second point is that there is no evidence that the worker had to perform or comply with the instructions of his employer on that particular journey. It was within the worker's discretion to visit the workshop anytime that afternoon. He could have gone home and then returned to the workshop. He could have returned to the workshop after his evening meal. He could have visited the workshop after a social engagement that evening.

11 The respondent relies upon question 25 in the worker's record interview:-

"Q25 Can you tell me what happened after you finished Trade School what did you do then.

A Well I put my backpack on made sure it was all secure and you know everything done up, hopped on my bike, checked the petrol and there was still quite a bit in there. Then I proceeded to head towards home."

"Q46 So Wednesday what were your plans after work when you left work what did you plan to do.

A Well a friend had rung me up the night before and asked me if I could fix his brakes at his car at his house. So I was going to head to the workshop, check the workshop while I was there grab some tools, fix my mate's brakes and if there was any letters or stuff on the way home I would call into the boss and pass them on. But I didn't make it home."

12 In other words the respondent proposes a factual scenario the reverse to that found in Andrew Chadburn v Queen Elizabeth Hospital (North Western Adelaide Health Service) JD47/1999 ie it was in the opposite direction (Chadburn involved a journey from home to Technical College). The present case is a journey from the Technical College to home.

13 The applicant submits that this is a s 30(5)(a) case. It is on all fours with The Corporation (The City Swim School) v Jeanette Anne Rowbery A1/1996 (The applicant does not suggest that s 30(5)(b) is applicable).

"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."

15 In my view s 30(5) is a code dealing with journey accidents. The issue here is, was the journey undertaken in the course of "carrying out duties of employment".

16 The classical exposition of this concept is found in TransAdelaide v Karanicos S5536 3 April 1996 (FCt) 8 per the Doyle CJ:-

"... 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. ... 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 its context."

17 It is significant that Mr Nebl was provided with a key for the specific purpose of inspecting the workshop and the office, and thereafter reporting to his employer. Given the fact that the employer concedes that there was a specific instruction to his apprentice to carry out this exercise, it seems to me that it must follow that as the worker was going about his employer's business. 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".

18 To the suggestion that there has to be a "primary" purpose to the journey - I can find no warrant for so reading down the words of the Act. 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. It does not help to apply the distinctions of scholastic philosophy, of "primary" end or "secondary" end, to determine the purpose of this journey. Common sense dictates that the worker could not have fulfilled his master's instruction without going to Strathalbyn - that he might have to go there in any event to go to his residential home, is beside the point.

19 I also reject the argument that the fact that the worker could perform the task at the time he chose has any bearing on the character of the journey. If the worker chose to carry out the task at a particular time, the mere fact that he could have carried it out later has no bearing on the issue. It is not suggested that there was any disqualifying activity by the worker.

20 The journey fits squarely within the definition mandated by Doyle CJ in TransAdelaide v Karanicos (supra) at 8:-

"The inquiry is not restricted to those things which a worker is literally or specifically required to do. The concept of duties of employment in my opinion extends beyond things which the employee is obliged to do."

The worker was complying with an instruction from the employer. The instruction was given by the employer in the exercise of control. In this case the worker does not require a liberal construction. He was doing something he was specifically required to do. He had received instructions from his employer and was carrying out those instructions.

21 Finally the respondent relies upon a section of the judgment of Doyle CJ in South Australia v Brophy 68 SASR 97 at 103:-

"Section 30(5)(a) requires that the journey to be undertaken 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. Nor did anything happen in the course of the journey that altered its private or non-employment related aspect."

22 The present case is quite unlike Brophy's Case. This journey commenced not for a private purpose travelling from the place of employment (Technical College) to the worker's home. It commenced at the TAFE for the purpose of carrying out the master's instructions. In that respect is quite distinguishable from the facts in Brophy's Case.

23 Indeed this is a case that is similar to Giacomo Centofanti v The Corporation (BSF Fruits Pty Ltd) 1996 8 WCATR 169.

24 In my view this journey undertaken by the worker, was undertaken in the course of carrying out duties of employment. Therefore the worker should succeed.

25 I set aside the determination. I order that the respondent pay the appropriate compensation to the worker.

26 I order the respondent to pay the worker's costs.

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.