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[2001] SAWCT 104
appellant. The respondent’s determination rejecting Ms Owen’s compensation claim was set aside and replaced with a determination accepting the claim; the respondent was ordered to pay her costs, and the...
1 cited instrument linked from this judgment.
The Tribunal accepted Ms Owen's claim because her bicycle journey home was connected to a planned sequence of work-related activities, not merely an ordinary trip home. She intended to return to school by car to collect materials for work she would do at home. The Tribunal treated the journey as reasonably incidental to her job. It did not decide the alternative argument about the statutory test for specified journeys between home and work.
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Owen v Department of Education Training and Employment concerned a journey injury under the Workers Rehabilitation and Compensation Act 1986 (SA). Suzanne Mary Owen was an assistant principal at Mitcham Girls High School and also taught two senior subjects. On 4 February 2000, after finishing her last class at about 3.15 pm, she set off by bicycle to ride home. At about 4.15 pm she was injured in an accident during that journey [1], [5]-[6].
The journey had a specific work-related context. The judgment records that Ms Owen regularly worked outside formal school hours, both at school and at home. During the busy first teaching week of the year, she had been cycling home and then returning to school by car to collect materials too heavy to carry on her bicycle. Her principal knew of this practice and regarded work at home as a normal part of Ms Owen's employment [3]-[4].
On the day of the accident, Ms Owen intended to collect folders and files she had already prepared. She planned to work on them at home that evening and over the weekend. She also expected to attend to school security when she returned to the school [5]. The Tribunal accepted that her bicycle journey home was one step in this planned sequence.
The statutory provision under consideration was s 30. Section 30(5) addressed when a journey-related disability could arise from employment. The parties identified two possible routes: first, whether the journey was undertaken in the course of carrying out duties of employment under s 30(5)(a); and second, whether it was a specified journey under s 30(5)(b) with a real and substantial connection between employment and the accident [2], [8].
The Tribunal decided the first question in Ms Owen's favour. It set aside the respondent's 5 May 2000 determination rejecting her claim and substituted a determination accepting it. The respondent was ordered to pay her costs, either as agreed or as taxed [15]-[18]. The Tribunal expressly did not decide the second question [17].
The central reasoning was that the journey had to be assessed in the context of the worker's job and the surrounding events, rather than isolated as a simple trip from work to home. The Tribunal discussed the Full Supreme Court's approach in TransAdelaide v Karanicos. That approach was described as liberal, practical and attentive to contemporary understandings of work. It was not limited to tasks the worker was literally or specifically required to perform [11].
The passage from Karanicos emphasised asking whether a worker was performing the job, complying with an employer instruction, or doing something reasonably incidental to either. It also said that what came before and after a journey could reveal a connection that would not be apparent if the journey were considered alone [11]. Owen applied that contextual method to the evidence about Ms Owen's planned activities.
Three circumstances were identified as significant. First, working at home outside school hours was a normal part of her employment. Second, she planned to work at home on the evening of the accident. Third, the journey was part of a sequence enabling her to collect and use materials for work, rather than simply a private journey between the school and her home [13]. The Tribunal concluded that her travel was reasonably incidental to doing her job [14].
The treatment of State of South Australia v Brophy illustrates why the character and starting point of the journey mattered. In Brophy, as described in Owen, the worker's journey from work to home began for a private purpose and nothing during the journey changed that character [12]. Owen's circumstances were different on the Tribunal's findings: Ms Owen had a planned work-related purpose connected with her return to the school and subsequent work at home. The Tribunal therefore found the link under s 30(5)(a).
The decision did not hold that every commute involving work materials, or every journey preceding work at home, is necessarily undertaken in the course of employment. Its reasoning depended on the particular findings about Ms Owen's regular work practices, the principal's knowledge, the planned retrieval of prepared materials, and the work she intended to do immediately afterwards [4]-[5], [13]-[15].
The judgment sets out the statutory framework rather than attempting a broad account of legal change. Under s 30(5)(a), the question was whether the journey was undertaken in the course of carrying out duties of employment. Under s 30(5)(b), the alternative route concerned specified journeys, including travel between residence and employment, and required a real and substantial connection between employment and the accident. Section 30(6) cautioned that an accident during a journey to or from work did not, by itself, establish the required connection for s 30(5)(b). Section 30(7) addressed reasonably direct routes and certain interruptions or deviations [8].
Owen's contribution in this case was to apply the s 30(5)(a) pathway to an unusual journey sequence. Rather than deciding whether Ms Owen's journey qualified under the home-to-work route in s 30(5)(b), the Tribunal found that it was undertaken in the course of carrying out duties under s 30(5)(a) [15], [17]. The decision therefore does not establish how the second pathway would apply to these facts.
The Tribunal drew on the reasoning in Karanicos, including a practical inquiry into whether the journey was reasonably incidental to the employee's work and an instruction to consider what preceded and followed the journey [11]. It also referred to Danvers and quoted a passage from Karanicos that referred to Whittingham [10]-[11]. Those references support the interpretive context recorded in the judgment; Owen does not purport to replace the statutory language with a new test.
The judgment's account of Brophy provides a contrast in application. There, the journey was characterised as having commenced for a private purpose and remained private in character. Owen found a sufficient employment connection because the journey formed part of a planned sequence of work-related activities [12]-[15]. This is a fact-sensitive distinction, not a general rule that commuting journeys are automatically covered when a worker plans to work later.
The judgment alone does not establish the subsequent development of the law or how later courts have interpreted it. Any account of the law after Owen would require later legal sources, which are not included in the judgment text provided here.
At [11], the judgment reproduces the Karanicos proposition that the link between travel and employment may emerge only when the journey is viewed in context. In plain English, the worker's immediate movement from one place to another may not tell the whole story. The purpose of the journey and the activities before and after it may matter.
At [13], the Tribunal identifies the factual features it considered important: work at home was normal, Ms Owen planned to work that evening, and her travel was one step in a sequence to enable work at home over the weekend. This paragraph shows the connection the Tribunal drew between the journey and the employment.
At [14], the Tribunal states its conclusion that Ms Owen was doing something reasonably incidental to her job. This is the decisive evaluative finding. At [15], it states that the necessary link between the journey and employment was established under s 30(5)(a).
At [17], the Tribunal makes clear that it did not decide the alternative question under s 30(5)(b). This matters when describing the scope of the decision: Owen is a determination under s 30(5)(a), not a ruling that the separate real-and-substantial-connection requirement under s 30(5)(b) was satisfied.
Owen is most relevant to a journey where the evidence may show that travel is integrated into a planned sequence of employment activity, rather than being merely travel between work and home. The judgment's own facts include regular work outside school hours, employer awareness of that practice, work materials to be collected from the workplace, a plan to work on those materials at home, and a journey that enabled the sequence to occur [4]-[5], [13].
The case may be relevant where the immediate destination or direction of travel appears ordinary, but the surrounding circumstances may show an employment purpose or a step reasonably incidental to work. The judgment requires attention to the journey's context; it does not reduce the issue to the worker's physical location at the moment of injury [11], [13]-[15].
The comparison with Brophy also identifies a potentially important factual distinction. Owen describes Brophy as involving a journey that began for a private purpose and did not change character during travel [12]. The distinction in Owen was that Ms Owen's journey formed part of a work-related plan. That contrast may prompt factual questions about the worker's purpose, the employer's knowledge, the work practice, the materials involved, and what was intended to happen after the journey.
The judgment does not determine the alternative statutory pathway for an ordinary home-to-work journey under s 30(5)(b). Nor does it decide questions about different routes, deviations, interruptions, or the operation of s 30(7) on other facts. The statutory text is reproduced at [8], but those matters were not resolved in this decision.
The judgment provided here contains no decisions issued after Owen and no account of subsequent treatment of Owen by later courts. It would therefore not be grounded in this source to state that Owen was followed, distinguished, affirmed, or otherwise treated by later courts.
The authorities that Owen itself discusses are earlier authorities. The Tribunal applies the approach it draws from TransAdelaide v Karanicos [11]. It refers to Danvers in setting out the context for a broad understanding of employment-related activity [10]. It discusses Brophy as a contrasting journey fact pattern [12]. These are relationships within Owen's own reasoning, not evidence of how later courts treated Owen.
For a complete account of subsequent treatment, the later cases and any relevant appellate history would need to be checked separately. The judgment's note says an appeal from an appealable part of the decision had to be filed within 14 days of delivery and served on the parties [19 and note]. The text supplied does not say whether any appeal was filed or what happened afterwards.
The clearest issue left open is whether the journey could also have satisfied s 30(5)(b). The Tribunal expressly declined to decide that question after finding for Ms Owen under s 30(5)(a) [17]. Accordingly, the decision offers no conclusion about whether the accident had a real and substantial connection with employment under that alternative provision.
Other questions are also outside the decision's findings. The Tribunal did not set out a general threshold for how much work-related purpose is needed to characterise a journey as reasonably incidental to employment. It decided the particular claim on the evidence of Ms Owen's established work practices, the planned collection of materials, and her intended work at home [4]-[5], [13]-[15].
The judgment also does not address different circumstances such as a worker collecting materials without intending to work on them, an employer being unaware of out-of-hours work, a journey with a substantial private purpose, or a deviation from the direct route. Section 30(7) is reproduced, but there was no identified route deviation to decide in this case [8]. Those examples are unresolved by this judgment, not conclusions about how the Act would apply to them.
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1 On Friday 4 February 2000 Suzanne Mary Owen ("the applicant") who at the time was Assistant Principal: Education of Girls and Women/School Management at Mitcham Girls High School suffered injury and resultant disability whilst riding her bicycle home after school had finished for the day.
2 The issue for judicial determination is whether the disability is compensable pursuant to s 30 of the Workers Rehabilitation and Compensation Act 1986 as amended ("the Act"). In turn in the circumstances of this case the parties agree that this requires the consideration of two questions namely whether:
* the journey was undertaken by the applicant in the course of carrying out the duties of her employment pursuant to s 30(5)(a) of the Act or,
* the journey undertaken by the applicant was between the applicant's place of residence and place of employment and a real and substantial connection between the employment and the accident out of which the claim disability arose exists pursuant to s 30(5)(b) of the Act.
3 The evidence of the applicant which was not disputed established that her duties principally involved administration although she did teach two subjects to senior classes at the school. It was acknowledged that her work was not confined to formal school hours and that she did a considerable amount of work out of hours both at school and at home.
4 The week in which the applicant was injured was a busy one. It was the first teaching week of the Year 2000 and she had much on her plate; fine tuning many administration details and a considerable amount of class preparation in particular in relation to a new year 12 subject she was to teach. During that first week on most nights the applicant rode her bicycle home and returned to the school by car to pick up materials in order that she might work on them at home. The materials were too heavy for her to carry on her bicycle which was her normal means of transport between home and the school. On her return to school in the evenings she often attended to outstanding work matters, assured that the building which contained her office was locked and generally saw to the security of the school. It is to be noted that the School Principal was aware of her practice of commuting to and from work by bicycle and returning to school by car in the evenings to pick up materials. She was also of the view that the work at home was a "normal part" of her employment
5 On 4 Friday 4 February the applicant finished her last class at about 3.15 pm and subsequently left the school to ride her bike home by a route which was reasonably direct. Her plan at the commencement of the journey was to pick up her motor car at home and drive back to the school to pick up folders and files which she had already prepared and which were too bulky and heavy to carry on her bike. She needed the materials in question in order that she could work on them at home over the week end. In fact she had planned to commence work on them that very evening after dinner and continue working over the week end. In addition, on her return to the school she would have, inter alia, seen to the security of the property before leaving.
6 Unfortunately at about 4.15 pm whilst riding her bicycle home she was involved in an accident which resulted in the disability the subject of this claim.
7 In the circumstances postulated above the question is, is the disability compensable?
8 The relevant statutory provision is contained in s 30 of the Act which provides insofar as material to this case as follows:-
"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"
(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).
(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."
9 The provisions under consideration in this case were considered by the Chief Justice in TransAdelaide v Karanicos (unreported Full Supreme Court S5536 delivered on 3 April 1996).
10 In discussing his approach to the provision the Chief Justice considered it necessary to set his views in the context of the development of the statutory approach to the concept of a disability arising in the course of employment. He referred to the original statutory concept namely ("the course of the employment") which he said now finds expression in s 30(2)(a). He expressed the view that that was not a narrow concept and referred in this regard to Barwick CJ in Danvers v Commissioner for Railways (New South Wales) [1969] HCA 64; (1969) 122 CLR 529 at 536:-
"It has become apparent in Australia that what is in the course of an employment cannot be limited to what the employer is bound by the terms of his engagement express or implied contractually bound to do. The strict views expressed in such a case as Philbin v Hayes (1918) 87 LJKB 779, are no longer valid, in my opinion, for the solution of such a problem in Australia as is posed in this case. The course of an employment, to use the language of Dixon J in Henderson v Commission of Railways (WA) (1937) 59 CLR 281, at pp 298, 294, includes the doing of `whatever is incidental to the performance of the work, and will include what he "reasonably acquired, expected or authorised to do in order to carry out his actual duties".
11 The learned Chief Justice then continued as follows at 8, 9:-
"I turn now to the question whether it can be said in the present case that the journey was undertaken by the worker in the course of carrying out duties of her employment. I think that the approach to be taken is broadly similar to that outlined by Barwick CJ in Danvers v Commissioner for Railways (NSW) (supra). The test is to be applied in a liberal and practical manner. 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. I also consider that one is entitled to and obliged to take into account contemporary conditions and contemporary understandings of the concept of duties of employment. 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 as practice, must be considered together with the conditions of the employment.'
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."
12 The issue was also dealt with later by the Full Court of the Supreme Court in State of South Australia v Brophy (1997) 190 LSJS 192. In brief terms that case concerned a worker who was a sergeant of police in the "Escort Group". He was injured whilst travelling from work to home on his "Police Issue Motor Cycle". The Chief Justice was not persuaded that in the circumstances of that case the journey was undertaken by the worker in the course of carrying out his duties of employment. He said 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. Nor did any thing happen in the course of the journey that altered its private or non-employment related aspect."
13 Applying then the considerations referred to above to the circumstances of this case it seems to me that the following matters are of significance.
* Out of hours work at home was a "normal part" of the applicant's employment.
* That the applicant had planned to work at home during the evening of the day on which she was injured.
* The journey undertaken by her was not one for a private purpose namely merely a journey between her place of work and place of abode but rather was one step in a sequence of actions which would enable her to complete tasks at home on the evening in question and over the week end that were directly work related.
14 In all of the circumstances I am persuaded that in undertaking the journey in this case the applicant was doing something reasonably incidental to the performance of her job.
15 In those circumstances I am satisfied that the necessary link between the applicant's journey and her employment is established and thus that the journey was undertaken in the course of her carrying out duties of employment within the meaning of s 30(5)(a) of the Act.
16 It follows from the above that the respondent's determination of 5 May 2000 rejecting the applicant's claim for compensation should be set aside and in lieu thereof a determination be substituted accepting the claim
17 Given my conclusion on the first question it is unnecessary for me to consider the second posed and I expressly refrain from so doing
18 The respondent will pay the applicant's costs of and incidental to the application to be agreed or in default of agreement taxed.
19 I will hear the parties as to any ancillary matters should it be necessary.
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.
Owen
Department of Education Training and Employment [2001] SAWCT 104
(1969) 122 CLR 529
(1937) 59 CLR 281
(1931) 46 CLR 22
The respondent’s determination rejecting Ms Owen’s compensation claim was set aside and replaced with a determination accepting the claim; the respondent was ordered to pay her costs, and the Tribunal did not decide the alternative s 30(5)(b) issue.