Pickwell v Cotswold Australia Pty Limited

Court of Appeal (NSW)|2001-12-06|Before: Spigelman CJ, Heydon JA

The applicant is precluded from receiving compensation by section 9A of the Workers' Compensation Act 1987.

B That the Respondent intends to call evidence and rely on the abovementioned grounds.

C That the Respondent states that the Applicant's particulars are inaccurate or incomplete in the following respects as to the facts contained in paragraphs and the Respondent does not admit the facts alleged in the said paragraphs." 14 The document did not explain what was meant by "such interruption or deviation" in paragraph A11. As to paragraph C, no "following respects" were stated. Those and other aspects of the amended answer suggest that the most charitable construction of it is that it was a machine-generated piece of boiler plate. Another construction of it, in the light of the denials of injury in paragraphs A1 and A2 and the terms of paragraphs A10 and A12 is that it is, in large measure, cruel and heartless. The proceedings before Commissioner Hogg 15 Commissioner Hogg heard evidence on 6 August 1999. Apart from documentary evidence the evidence consisted of the worker's testimony and the testimony of Mr E Tierney, the employer's production manager. Addresses took place on 26 August 1999. 16 Commissioner Hogg said, in the reasons he gave for his award, that the issues were: was the claim a journey claim; had the injuries arisen out of or in the course of the worker's employment; and was the employment a substantial contributing factor to the injuries. 17 Commissioner Hogg made the following findings of fact initially: "21 March 1997, the day upon which the incident occurred was a Friday. It was a day that Mr Pickwell had taken as a rostered day off work. At about 1pm on that day Mr Pickwell had received a phone call from his work shop foreman/manager, Mr Eamonn Tierney. By that phone call Mr Tierney foreshadowed the possibility that the applicant may be required to perform an "on-site job" the next day, Saturday. The evidence as to what constitutes an "on-site job" will be dealt with in some detail later in these reasons. However, put shortly, it is a job which requires an employee of the respondent to attend at another company's premises or place of business in order to perform work in situations where there has been a breakdown of a machine which requires some fixing or perhaps maintenance work and where that job for practical purposes, must be carried out 'on-site'. So Mr Tierney had told Mr Pickwell that he may possibly be required to perform such a job on that Saturday. By that phone call Mr Tierney was putting the applicant on notice of the possibility that he may be needed to do an 'on-site' job on the Saturday and it was clear from the evidence, and indeed accepted by Mr Pickwell, that Mr Tierney would telephone Mr Pickwell again at some later stage to confirm whether the applicant would indeed be required to perform the job on Saturday. Even though Mr Pickwell was expecting another call from Mr Tierney, he decided to go off for a motor bike ride and accordingly he headed off to a suburb called Wedderburn, which was about 15 kilometres from his home where there were fire trails and tracks for motor bike. He had a new bike and wanted to ride it. Mr Pickwell took his mobile phone with him when he went off on this ride to Wedderburn. He came back home after his ride, arriving at around 3.30pm. The precise details of what occurred when he arrived home are of importance to the determination of the 'journey' issue and will need to be dealt with in fuller detail later in these reasons. In any event, the applicant, for reasons which will be considered later in this judgment, set off again from his home on his motor cycle and it was during this trip on his motor cycle that the applicant was involved in the accident in which he sustained his severe injuries." 18 Commissioner Hogg then set out s 10 of the Act. The relevant provisions are subss (1), (3)(a) and (4). "(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment and compensation is payable accordingly.

(3) The journeys to which this section applies are as follows:

(a) The daily or other periodic journeys between the worker's place of abode and place of employment. (4) For the purpose of this section, a journey from a worker's place of abode commences at and a journey to a worker's place of abode ends at, the boundary of the land on which the place of abode is situated." 19 Commissioner Hogg then recorded the employer's submission that the worker's journey from his place of abode around 3.30pm did not commence at the boundary of the land on which that place of abode was situated because when he returned from Wedderburn he had not crossed the boundary of the land.

20 Commissioner Hogg then set out part of the worker's evidence-in-chief as follows: "Q. So you went out to these fire trails, you said to Wedderburn, and what did you do after you finished out there? A. I headed back towards home and then I pulled up in the driveway, I thought, like wow, I haven't heard from him. Could've - many reasons, maybe out of range, couldn't hear it over the bike, so I thought instead -

Q. What time was that do you think you arrived? A. Probably about 3.30.

COMMISSIONER: Q. You actually arrived home? A. Yes, pulled up.

MR JOSEPH: Q. So you arrived home at 3.30. You are in what gear? A. I'm in dirty work - not work gear - dirty bike gear with riding boots, helmet, jackets.

Q. So you arrived home and you realised you had not heard from him, right? A. Yes.

Q. What did you then decide to do? A. I decided like just to head straight down there to find out.

Q. Down where? A. Down to work to find out if the job was on, get ready to load the truck and find out what's involved in it.

Q. Why did you decide to head down straight down on the bike rather than, say, make a phone call? A. Saves getting off, going inside. I was in work boots. The house was locked up, gates were locked up, alarms on, so I decided to head down." The statement that the "gates were locked up" formed an important part of the employer's argument. 21 Commissioner Hogg then set out the following parts of the worker's evidence in cross-examination: "Q. What I am asking you though is, can you, for instance - are you absolutely certain that you went to the house before you decided to go back to the factory? A. Yes.

Q. Absolutely certain about that? A. Yes.

Q. It did not just come to you while you were riding back and you did not stop at all and you kept going? A. No.

Q. Are you certain about that too? A. Yes, I pulled up in the driveway and that's when I thought about it all.

Q. That is when you thought about it all? A. Yes.

Q. You have of course been asked to give a couple of statements about this, have you not? A. Only one."

… Q. Just have a look at this document first of all and have a look at the signatures at the bottom. Just make sure that you have seen that document before and that you recognise the signature. Is that right? A. Yes.

Q. That is a statement you gave in August of last year about this accident to an investigator. Is that right? A. Yes.

Q. Just looking there, you were asked by the investigator to give the circumstances of the accident, were you not? A. Yes, I was asked, yes.

Q. You were asked to tell him what had actually happened. Is that right? A. (No audible response).

Q. Would you have a look at paragraph 3. Have a look there and I suggest to you you said this, 'I went for a ride on my motor bike to another suburb called Wedderburn where there are fire trails and tracks through the scrub land. When I finished out there I headed back towards home. Then I remember about work so I decided to head down to work to see about the job, if I had to do it and also to load the truck so that I wouldn't have to come in early in the morning to do it.' Do you see that? Do you see all that? A. Yes.

Q. Do you agree with me you said nothing there about returning to your house and about deciding to leave to your house to head to work. Is that right? A. That's what it reads there, but what I actually did was different.

Q. So the statement is wrong? A. Yes, to me these statements were more like answering questions to the bloke.

Q. When you received this statement in its typed form, did you read it? A. Yes.

Q. After you read it you signed it. Is that right? You cannot just shake your head. You have got to say yes because it is being recorded. You do not have any problem reading, do you, Mr Pickwell? A. No.

Q. You understood what was in the statement? A. Yes, until now.

Q. Until now, but now you say there is a bit more to it, is that right? A. Yes, I just - everything not worded in here -

Q. Everything is not worded in there? A. How much ... " 22 Commissioner Hogg said that he accepted the worker's evidence and said that he was "a witness of truth who attempted at all times to be frank and accurate in the giving of his evidence." Commissioner Hogg appeared to conclude that there was no relevant inconsistency between the worker's statement to the investigator and his evidence-in-chief, the latter being merely more detailed. He said that he was satisfied on the balance of probabilities that the worker had "pulled up in the driveway". 23 Commissioner Hogg then quoted a submission by the employer to the effect that since the gates were locked up and since senior counsel for the worker, who was of "long experience" had not attempted to elicit more specific evidence, the worker cannot have crossed the boundary. The submission concluded: "There is no attempt to identify which gates, where they were, anything, but that is the onus and it is a very strict onus because that is why the Act was amended to give clear indication to courts that the journey must commence at a particular point. It was to avoid all those cases that you have no doubt heard and heard over the years of people coming out of blocks of flats and premises and so forth and it was made specifically for that." Commissioner Hogg then said: "I am not convinced that the respondent's submission is correct in this regard. It does not follow to conclude that Mr Pickwell had not crossed the boundary upon which his home was situated when he pulled up in the driveway ... Indeed, by pulling up in the driveway, the contrary is suggested. It should be emphasised that it is the unchallenged evidence of the applicant that he pulled up in the driveway. The respondent's submission would, of course, have more merit had Mr Pickwell stopped in the street outside his house, but he doesn't do that. He ...'pulls up in the driveway' ... and on the balance of probabilities I would conclude that he was on the boundary upon which his place of abode was situated and had crossed the boundary of his property in reaching that point "in the driveway". Further detailed discussion and reasoning in relation to this point follows later in these reasons.

The respondent contends, however, that other evidence, being the fact that the gates were locked, should lead to the conclusion that Mr Pickwell had not crossed the boundary. I cannot adopt the logic of that submission. There is absolutely no evidence as to where these gates were situated nor what gates were actually being referred to. I do not even know whether these gates were on or near the driveway or, if they were, those gates could be anywhere on the driveway, I simply do not know. The only specific evidence on this point is that Mr Pickwell ... 'pulled up in the driveway' ..." 24 After dealing with matters largely relevant to other aspects of the case, Commissioner Hogg said: "I am grateful to Johns J for such a helpful analysis of the authorities and legislative history and I adopt his Honour's reasons. With that in mind, I reiterate that it was more likely than not Mr Pickwell crossed into his place of abode when he ... 'pulled up in the driveway' ... It is more likely than not that Mr Pickwell goes on to the property upon which is situated his place of abode when he goes into the driveway. There is nothing in evidence to suggest anything other than this was a driveway.

'Driveway' is defined in the Shorter Oxford English Dictionary as ... 'a private road leading to a house, a drive ...' The concept of 'private' is interesting and conveys the impression that it is within an area that is private property or under private ownership or control. Either view would tend, in my view, to support the proposition that it was within the area contemplated by the words 'place of abode'. Relevant to those considerations, it is interesting to reiterate what was said by Johns J in Calvert at page 143: 'The Second Reading Speech in Hansard on 21 November 1989, insofar as it can be used as assistance in determining the legislative intent, makes it clear at 12,928 that the provisions in accordance with the 1964 amendment were inappropriate as employers were not to be held liable for accidents that happened in places such as the worker's own front porch, garage or driveway. It was said that accidents of that nature were not related to the hazards of journey.'

For those introducing the legislation it would seem that an area such as a driveway was considered to be within the boundaries of the place of abode. Whilst the facts of each case will define such boundaries, there is nothing to indicate in this present matter that the driveway at Mr Pickwell's place of abode is anything other than a normal driveway which, on the balance of probabilities, would be within the boundary of his place of abode. It would also seem logical to conclude that for those reasons that had the injuries been sustained while he was in the driveway, it is unlikely that Mr Pickwell would have been entitled to benefits of the journey provisions and it would have been interesting to see what the respondent's submissions as to the status of the driveway would have been had that been the case.

Alternatively, it may also have been possible that where Mr Pickwell pulled up in the driveway may well have been on the actual boundary of the place of abode and as subsection (4) only requires the journey to commence at the boundary, that interpretation of the facts would also entitle Mr Pickwell to the benefit of the journey provisions." The last observation is scarcely a finding on the balance of probabilities, however. 25 Commissioner Hogg also noted a submission of senior counsel for the worker that section 10(4) did not require the journey to commence at the boundary of the land on which the place of abode stood. He accepted that submission and this constituted an independent ground for finding in favour of the worker. 26 Commissioner Hogg then found that the worker had been "heading to work" and that that was "an intention and reason for the journey" which was "connected with the employment". He rejected the submission that there was no work to be performed. He found that the jury was a "periodic" journey within the meaning of s 10(3)(a). He rejected the employer's submissions that there had been a deviation and that the injuries were contributed to do by serious and unlawful conduct (cf s 10(1A)). In the light of those findings, it was possible for Commissioner Hogg to proceed to make the awards he did. The appeal to Neilson J 27 The employer appealed to Neilson J on two grounds: "1. The Commissioner erred in holding that the journey was a daily or periodic journey.

The Commissioner erred in holding that the journey had commenced from the worker's place of abode." Section 34A(1) of the Compensation Court Act 1984 provided: "If a party to any proceedings before a Commissioner is aggrieved by an award of the Commissioner in point of law or on a question as to the admission or rejection of evidence that party may appeal to a judge."

Judge Neilson noted that the grounds did not disclose errors of law, but also noted that the arguments actually advanced for the employer were that there was no evidence upon which Commissioner Hogg could find that the worker had crossed over the boundary of his property on his return from Wedderburn, and that there was no evidence on which he could find that the journey towards the employer's premises was a "periodic journey". 28 In relation to the first issue, after an extremely detailed analysis of Commissioner's Hogg's reasoning, the evidence and the submissions of the parties and an analysis of dictionary definitions which were more extensive in character than that engaged in by the Commissioner, Judge Neilson concluded that the evidence was incapable of supporting the finding that the worker had crossed over onto his property on his return from Wedderburn. He also rejected the construction of s 10(4) advanced by the worker which had been accepted by Commissioner Hogg. These conclusions were sufficient to cause the appeal to be allowed. He did, however, reject the second argument of the employer and concluded that it was open to Commissioner Hogg to find that if the events constituted a journey it was "a periodic journey". He remitted the matter to Commissioner Hogg for the purpose of the Commissioner determining whether the worker's injury arose out of or in the course of the employment and, if so, whether the employment was a substantial contributing factor to the injury. The appeal 29 The only questions argued on the appeal in writing related to Commissioner Hogg's finding that the worker had crossed the boundary and to the construction of s 10(4). The only question argued on the appeal orally related to one aspect of the former topic. Did the worker cross the boundary? 30 The worker pointed to his evidence-in-chief quoted above. He said this evidence: "makes it clear that the worker stated that he had arrived home after which the learned Commissioner clarified that the worker meant his actual home after which the worker's counsel without objection from senior for the employer prefaced his following questions based on the acceptance of the evidence that the worker had arrived home." The worker then pointed to the following evidence elicited by counsel for the employer in cross-examination: "Q. That is fine. What I am asking you though is can you, for instance - are you absolutely certain that you went to the house before you decided to go to the factor? A. Yes.

Q. Absolutely certain about that? A. Yes." 31 The worker then submitted: "His Honour failed to place any or sufficient weight upon the plaintiff's reference and to the distinction between 'home', 'arriving home', 'actually arriving home' and his evidence that he went to 'the house'. Particularly, when the evidence in respect of 'the house' is taken together with the evidence that he 'pulled up in the driveway', these expressions together or separately convey the inference sufficient to find that he crossed the boundary.

Further, the expression of 'actually' arriving home was clearly accepted by the Commissioner as probative or clarifying of the situation and such ought not and could not be dismissed by Neilson CCJ as probative of nothing." 32 The worker concluded: "His Honour erred in making no mention of whether the evidence might be sufficient to shift the evidentiary onus to the respondent. The respondent asked no questions of the worker other than to 'reinforce' his evidence by referring to the fact that the worker had arrived home. The witness was in the witness box, the failure to ask the question by the employer on a 'disentitling" provision i.e. s 10(4) is fatal to the employer's case. Once the worker had established the provisions set out in the entitling provision of section 10(3), see for example Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45 and the rule in Allied Pastoral.

His Honour failed to give any weight to the dictionary definitions demonstrating that the word 'driveway' is often used to describe the driveway is the private road and not the public road leading to the house. His Honour also failed to give any weight to common language as demonstrated by the learned Commissioner. It is quite apparent to a reader of the whole of transcript that everybody in the Court room (by this statement I mean the Commissioner, senior counsel for the applicant and senior counsel for the respondent and the worker, well understood that the worker had crossed over the boundary of his place of abode. This being so, the 'no evidence' appeal must fail." 33 The employer's arguments in answer were: "3. His Honour dealt with this argument in paragraphs 10.33 of this Reasons (RAB 53E-68F). He there set out the evidence of the appellant as to from where he began the journey upon which he suffered his injury (RAB 53H-55H; 67J-L). That evidence, as originally given, is at CAB 5F-P and 26C-W.

It is submitted that this evidence falls short of making it probably as a matter of fact that the appellant relevantly crossed the boundary and that his Honour's analysis and reasoning are correct in that regard. His reasoning essentially appears at RAB 61D-68E.

It is submitted that his Honour's approach of directing himself in accordance with Holloway v McFeeters 94 CLR 470 (see RAB 61J-T) and in relying upon the decision of this Court in Ambulance Service of NSW v Daniel (2000) 19 NSW 364 (see RED 61U-63U) was correct. It is also submitted that his Honour's more comprehensive review of the relevant dictionary entries as to the meaning of 'driveway' (see RED 64W-66E) is correct?

The appellant carried the onus of showing that his journey had the requisite statutory character. This included that category as indicated by section 10(4) of the Act. His evidence was ambiguous and imprecise. It fell short of bringing any satisfactory degree of clarity to this aspect of the case. His Honour was, it is submitted, correct to point out that evidence clarifying the position could easily have been led: see RED 66W-67B. It could readily have come from the appellant himself who naturally gave evidence. It has been said in this Court per Handley JA that a Jones v Dunkel inference is the stronger when the witness is actually called, so that he could have been asked the necessary questions, and they were not asked: Commercial Union Assurance Company of Australia Limited v Ferracom Pty Limited (1991) 22 NSWLR 389 at 418-9, citing American authorities."

34 In Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697, paragraphs 56-57, Hodgson CJ in Eq said the following about Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156-157: "In the main judgment in that case, that of Glass JA, a clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof. In the former situation the question is not whether there is any evidence at all on the point but rather whether the evidence on the point is sufficient, in the sense that it is evidence, which is fully accepted could properly base the finding of fact. The distinction is made clear in the following passage from the judgment of Glass JA at 156:

'To the legally uninitiated there is a spurious validity in a submission that it was not open to the Judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence.'

That very sharp distinction has not been stated so clearly in all the cases which followed Azzopardi." Hodgson CJ in Eq then analysed certain later decisions of this Court and said they probably represented a misreading of Azzopardi's case. Sheller and Beazley JJA agreed. This Court is bound by the true construction of Azzopardi's case propounded by a later decision of this Court, and that true construction is to be found in Hodgson CJ in Eq's analysis. Hence, the question is whether the evidence in favour of the worker's contention, on which he bore the onus of proof, was "evidence, which, if fully accepted, could properly base the finding of fact". 35 The employer necessarily had to assume against itself that the worker's evidence has been accepted. It had to submit that, even if it was accepted, it was not capable of establishing the fact. 36 In oral argument counsel for the worker stressed the passages from the worker's evidence-in-chief and in cross-examination which have been quoted above. 37 In oral argument counsel for the employer maintained that it remained completely obscure even if one accepted the worker's evidence as to whether he had crossed the boundary and where the boundary was. Likewise, he submitted that the evidence, if even fully accepted, is not capable of proving the central ingredient necessary for the worker's case. Specific attention was drawn to Judge Neilson's view that the Commissioner had selectively quoted from the dictionary on which he relied. It is perhaps not necessary to deal with the merits of that submission in view of the reasoning which follows. 38 It must be assumed that the worker knew what the difference was between land on which his place of abode was not situated and land on which his place of abode was situated. His evidence-in-chief was that he pulled up in the driveway. At that point he realised he had not heard from Mr Tierney, with whom he was to speak in relation to the possibility of work in the immediate future. He then indicated what time he arrived. The Commissioner then interrupted and asked, "You actually arrived home?" His answer was, "Yes, pulled up." In my judgment that question and that answer are capable of being read as an attempt by the Commissioner to elicit whether the worker had, in truth, crossed the boundary of the premises on which his place of abode was situate. It is not clear whether counsel on either side were alive at that stage to the point which eventually was broached in argument to the Commissioner or not. It does appear clear that the Commissioner was alive to the point. This Court is not in a position to assess the extent to which the Commissioner emphasised any particular part of his question, or the totality of the question. An available reading of the question and answer is that he was seeking to distinguish between those parts of the driveway which were and those part which were not on the land on which the place of abode was. If that evidence is read in the light of the possible conclusions which the Commissioner may have drawn from the way in which he asked of the witness the question, it is possible to treat the evidence as evidence which, if fully accepted, could probably base a conclusion that the boundary had been crossed. 39 In short, it was entirely plausible the emphasis used by the Commissioner and the confirmatory answer by the worker in the light of that emphasis supported a construction of the worker's words - "if fully accepted" - that he was indicating arrival within the boundary of his place of abode. 40 In those circumstances it must follow that the Commissioner's conclusion was not open to be reversed by Judge Neilson and that the appeal should succeed on that ground. 41 The appeal was also based on other grounds, one of which is an important and interesting issue of the true construction of s 10(4), but it is not necessary to examine either that or the other grounds. 42 The worker also sought leave to rely on two further grounds of appeal arising out of observations that had fallen from the Court in the course of argument. In the light of the above conclusions, it is not necessary to consider that application. Orders 43 I would propose the following orders:

Appeal allowed.
Respondent to pay the appellant's costs of the appeal.
Respondent to pay the appellant's costs of the appeal proceedings below.
The respondent's appeal in proceedings number 47868/98 in the Compensation Court be dismissed.
The award of Commissioner Hogg in matter number 47868/98 in the Compensation Court made on 19 November 1999 be reinstated.

44 SPIGELMAN CJ: I agree. 45 IPP AJA: I agree. 46 SPIGELMAN CJ: The orders of the Court are as indicated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Pickwell v Cotswold Australia Pty Limited [2001] NSWCA 462 FILE NUMBER(S) : CA 40426/01 HEARING DATE(S) : 06/12/01 JUDGMENT DATE : 6 December 2001

(2000) 19 NSWCCR 697

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