Rapson v Workcover/Allianz Australia Workers Compensation

"your husband in the company of another employee ... left your property at approximately 7:30 am ... driving a Holden utility owned by the employer ... your husband was the driver ... they were travelling to properties in Wolsley (sic) .... they were to perform spraying of cereal crops for broad leaf control ... they left the property at approximately 7:10 pm on 30/9/2003 having completed their duties for the day ... they once again travelled in the company utility vehicle and your husband was the driver ... intent was for your husband to travel home ... at approximately 8:30 pm on 30/9/2003 your husband was involved in a vehicle accident wherein he sustained fatal injuries. There is no evidence that there was any fault with the work vehicle. ... your husband was travelling the most direct route home. ... Your husband was not required to visit any of the employer's properties and was driving home for the day.

On the basis of our investigations and the facts detailed above we concluded that

1. Your husband was travelling home from work at the time of the accident.

2. There was no real and substantial connection between your husband's employment and the accident."[1]

7 The agreed statement issues to be judicial determined are as follows:-

"1. Whether the worker died as a result of a compensable disability or compensable disabilities within the meaning of Section 30 of the Workers Rehabilitation and Compensation Act 1986 ('the Act'). In particular:

1.1

Whether the fatal injuries sustained by the worker in the motor vehicle accident that occurred on 30 September 2003 arose out of or in the course of a journey that was undertaken in the course of carrying out duties of employment: or

1.2

Whether the fatal injuries sustained by the worker in the motor vehicle accident that occurred on 30 September 2003 arose out of or in the course of a journey between the worker's place of residence and place of employment and there is a real and substantial connection between the worker's employment and the motor vehicle accident."[2]

8 Section 30:-

30. (1) Subject to this Act, a disability is compensable if it arises from employment.

(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;

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 evidence comprised various statements contained in the Trial Book[3]. No witnesses were called to give oral evidence.

10 The applicant's evidence was:-

11 She was aware that on 30 September 2003 the worker was required to go to Broadleas to spray weeds. He left their home to report in at Tooroot at about 7.15 am. The distance between Frances and Tooroot is 25 kilometres and the driving time was about 10 - 15 minutes. She had to go into Naracoorte. She left Frances at about 9.00 am and returned at 11.30 am when she noticed Mr Cother's utility was parked in the driveway of their home.

12 She assumed that the worker returned from Tooroot with Mr Cother so that they could travel together to Broadleas (which is approximately 25 kilometres north-east of Frances).

13 She believed their travelling arrangements (ie, the worker and Mr Cother travelling together) was a requirement of their employment.

14 She first became ware that the worker had been involved in an accident at about 10.30 pm on 30 September when police officers from Naracoorte came to her home and informed her.

15 At the time of the worker's death she was totally dependent on the worker. She is 35 years of age. There are three children by her marriage to the worker; Annalise (born 30 March 1998), Renae (born 28 April 2000) and Kimberley (born 20 December 2002).

16 She is currently renting a three-bedroom unit in Berri and is a full time carer for the children.

17 Mr Cother suffered serious head injuries as a result of the accident and he has only a limited recollection of what happened on 30 September 2003.

18 He can recall going to Tooroot at about 8.00 am and that he was requested to go to Broadleas to spray crops. He went there with the worker in a vehicle owned by Westphal. He recalls working there during the day but can recall nothing further about the events of that day nor of the accident. His next recollection was a few days later and when he was in the Flinders Medical Centre.

19 Mr Kobus Viljoen ("Mr Viljoen") lives on the Old Bangham Road. At about 8.00 pm on 30 September 2003 he was inside his home and heard a noise. He subsequently at about 9.00 pm drove down to his front gate and saw the utility rolled over on its roof. He telephoned the police and the ambulance.

20 Mr Shepherd's evidence was:-

21 He was a director of Westphal.

22 The worker started employment with Westphal in about February 1997.

23 The worker's duties included cropping, harvesting, spraying, irrigation, sheep work, general tractor driving and fencing, drenching and crutching sheep, maintenance on machinery and irrigators and service work on utilities and motor bikes[4].

24 On 30 September 2003 he instructed two employees of Westphal (the worker and Mr Cother) to go to Broadleas to spray crops for weeds. There is no direct road from Minimay to Wolseley because of the Little Desert and the most direct route is through Frances. He instructed Mr Cother to go with the worker in the utility. The utility was in good condition.

25 Due to wet weather, crop spraying had been delayed for a week. On 30 September 2003 there was a short break in the bad weather. A lot of work needed to be completed that day and he assumed that the worker and Mr Cother continued to work until it became dark at approximately 7.15 pm.

26 Soon after the 30 September 2003 he visited Broadleas and noted that a lot of spraying had been carried out during the course of the day on 30 September 2003.

27 Employees, including the worker and Mr Cother, frequently travelled together and did jobs on other properties on their way to work.

28 On this occasion the worker was not required to do any maintenance work on his way home.

29 Neither the worker nor Mr Cother were requested to return to Tooroot during or after work on 30 September 2003.

30 Mr Holland, counsel for the applicant, submitted that I should make certain findings including the following:-

•

The worker was employed by Westphal.

•

The worker's duties were as described by Shepherd in his statements[5].

•

The work instructions given by Shepherd to the worker and Mr Cother on 30 September 2003 were as per the information contained in Shepherd's statements[6].

•

The worker and Mr Cother were directed not to take both company vehicles to Broadleas[7], and they travelled together.

•

The utility was provided by Westphal for the worker for strictly work use "travelling to and from work and between work sites".

•

At the end of a day's work at Broadleas the worker and Mr Cother would drive back to the worker's property so that Mr Cother could retrieve his work vehicle and return to other Westphal properties or home.

•

They were travelling back on the most direct route[8].

31 He submitted that those findings should lead the Tribunal to the conclusion that the worker's death was compensable under both s 30 (5)(a) and (b) of the Act. In addition to the worker's duties of employment[9], another duty of his employment when working with Mr Cother was that they travel together in one company vehicle, and this included on the 30 September 2003 transporting Mr Cother from Broadleas to where he had left his vehicle, i.e. the worker's home. The worker was acting pursuant to a specific direction from Shepherd[10]. In so transporting Mr Cother, Mr Holland submitted that the worker was carrying out his "duties" within the meaning of s 30 (5)(a). In the alternative he submitted in the circumstances of this case there was a "real and substantial connection" with the worker's employment and the accident.

32 He relied on a decision of Doyle CJ in TransAdelaide v Karanicos (1996) SASC 5536 at 8:-

"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'"[11]; and

Whittingham v The Commissioner of Railways (W.A.) [1931] HCA 49; (1931) 46 CLR 22 per Dixon J at 29:-

"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 employment."[12]

33 Mr Luke, counsel for the respondent**,** submitted this was a simple case of the accident occurring when the worker was on a journey home which involved no other purpose. He referred to the passage of Doyle CJ in State of South Australia v Brophy (1997) 68 SASR 97 at 103 in support thereof:-

"Section 30(5)(a) requires that the journey be undertaken in the course of carrying out duties of employment.

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 anything happen in the course of the journey that altered its private or non-employment related aspect."

34 He said it might be argued that Mr Cother may have been in the course of a work journey at the time of the accident as he was being transported back to his work vehicle. This was to be compared with the worker who was simply going home: it was, he said, co-incidental that he was giving Mr Cother a lift home.

35 Without repeating them I make the findings sought by Mr Holland[13].

36 I find the utility was in good condition.

37 I also find that neither the worker nor Mr Cother were requested to return to Tooroot after work, nor was the worker requested to do any maintenance or other work for Westphal on his way home from work on 30 September 2003.

38 In The Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 at 361, Menzies J noted that "the concept of the course of a worker's employment has been gradually widened by decision after decision."

39 Although His Honour's comments were directed towards injuries happening during a meal break, his recognition of the judicial broadening of the concept of the course of a worker's employment led the authors of Principles of Workers' Compensation to conclude:-

"Had the judicial trend noted in Oliver's case continued, it is probable that the Courts would have come to regard travelling between the place of residence and place of employment as in the course of employment - maybe too, that injuries which occurred in a journey arose out of employment" (Principles of Workers' Compensation Hill and Bingeman 1981 at p 66).

40 Untrammelled by legislative amendments and binding authority ruling upon those amendments I might have been persuaded by such sentiments and inclined to accept Mr Holland's submissions.

41 However I am bound to give effect to the amendments and to adhere to the approach taken by the learned Chief Justice in Karanicos and Brophy.

42 As His Honour noted in Karanicos, Parliament in the context of journey accidents has not only arrested the judicial broadening of the concept of the course of a worker's employment, it has directed that it proceed in the opposite direction.

43 In Brophy after referring to Karanicos the learned Chief Justice said:-

"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."

44 In considering the extent to which the amendments have curtailed the potential for journey accidents to be covered by the Act it is helpful to consider the learned Chief Justice's application of those amendments to the facts in Brophy.

45 There was much to connect the circumstances of Sgt Brophy's motorcycle accident with his employment. He was a sergeant of police wearing his police uniform riding a police motorcycle from his place of employment to his home at the end of his normal working day on public roads, the very presence of which would influence the conduct of the public. In undertaking this journey he needed the permission of the Police Department and it imposed restrictions upon him which amongst other things included directions as to the route by which he travelled and the time which he took. Although off duty if he observed an occasion calling for the exercise of the powers of a police officer he was expected to and under a duty to do so. When the relevant accident happened he was making his own way home and not dealing with any matter that called for the exercise of his powers or authority as a member of the police force although he had exercised such powers in the past.

46 In rejecting the argument that his journey was undertaken in the course of carrying out duties of employment, the learned Chief Justice had this to say:-

"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 anything happen in the course of the journey that altered its private or non-employment related aspect**."

47 In this case all that connects the worker's employment with his journey are the facts that he was driving a motor vehicle owned by Westphal (as was Sgt Brophy) and he was expected by Westphal to take Mr Cother with him. The evidence does not permit a finding that he was paid to be Mr Cother's driver. It was convenient for Mr Cother and Westphal that the worker drive him home from work and doubtless that was seen as a reasonable condition to impose in light of the provision of the utility. But it was certainly no more of a condition than the expectation for Sgt Brophy to comply with directions as to the route by which he travelled and the time that he took and to exercise the powers of a police officer if relevant circumstances arose.

48 Whilst I heed the cautionary note of Menzies J in Oliver at 364 of relying upon the decision in one set of facts in considering the fate of another, the approach taken by Doyle CJ in Brophy to the facts in that case cannot be ignored because it serves as a graphic example of the extent to which the amendments have curtailed access to the Act for those who suffer injuries in journey accidents.

49 The fact that the worker and Mr Cother were directed to travel together in one company owned motor vehicle, as they did on 30 September 2003, is not sufficient in my view to properly categorize the return journey of the worker as being "undertaken in the course of carrying out duties of employment"[14], nor in my view was there a "real and substantial connection between the employment and the accident"[15].

50 I conclude the accident occurred when the worker was on a journey home which involved no other work related purpose.

51 Unfortunate though the result is for Mrs Rapson and her children, I conclude that the worker did not die as a result of a compensable disability or disabilities within the meaning of the Act.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

[14] S 30(5)(a) of the Act

[15] S 30(5)(b)(i) of the Act