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[2006] SAWCT 48
General information, not legal advice.
Workers Compensation Tribunal (SA)
2006-06-26
Doyle CJ, Williams JJ
Original judgment source is linked above.
1
Kevin Neil Rapson was killed in a motor vehicle accident on the evening of 30 September 2003. His widow Cheryl Rapson has sought compensation under the Workers Rehabilitation and Compensation Act 1986 on account of his death.
2
Mr Rapson was employed as a general farm hand by F Westphal Nominees Pty Ltd.
3
Westphal operates several farming properties near the South Australian and Victorian border adjacent to an area known as the Little Desert.
4
One of its properties is known as Tooroot and it is located in an area in Victoria known as Minimay.
5
Mr and Mrs Rapson lived in South Australia in the town of Frances. Frances is about 25 kilometres west of Tooroot.
6
On the day of the accident Mr Rapson was working with a co-employee Mr Richard Cother. They were working at another of Westphal's properties at Wolseley, which is about 50 kilometres due north of Frances.
7
Mr Cother lives near Tooroot. Because all of these areas border the Little Desert the only way of getting from Tooroot to Wolseley is via Frances.
8
Westphal supplied both Mr Rapson and Mr Cother with utility vehicles to be used in connection with their work as farm hands.
9
It is clear that on the day of the accident Mr Cother drove his utility from his home near Tooroot to Mr Rapson's home in Frances, that he left his utility there and that he travelled with Mr Rapson in Mr Rapson's utility to Wolseley.
10
Mr Rapson's fatal accident occurred after he and Mr Cother had finished working at Wolseley for the day and were travelling back to Mr Rapson's home at Frances.
11
The WorkCover Corporation rejected Mrs Rapson's claim for compensation because it formed the view that the accident had not occurred in compensable circumstances. It reasoned that Mr Rapson was travelling home from work at the time of his accident and that as such his death could only enliven entitlements under the Act if the circumstances of it satisfied the requirements of s 30(5) of the Act, and that in its view those requirements had not been satisfied.
12
Section 30 of the Act sets out the general conditions under which a disability is compensable for the purposes of the Act. It relevantly provides 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; ...
(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
(b) the journey is between -
(i) the worker's place of residence and place of employment; or
(ii) the worker's place of residence or place of employment and -
(A) 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
(B) 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 the worker has an accident in the course of a journey to or from work does not in itself establish a connection between the accident and the employment for the purposes of subsection (5)(b). ..."
13
Mr Rapson's movements prior to travelling from Frances to Wolseley were a matter of some conjecture.
14
Mrs Rapson's evidence was that her husband left their home at Frances to go to the Tooroot property, that sometime later he drove from Tooroot back to Frances in tandem with Mr Cother and that the two men then drove together in Mr Rapson's vehicle to Wolseley.
15
Robert Shepherd, one of Westphal's directors, said in a statement that he gave to the police on 23 February 2004 that:-
"On Tuesday 30 September 2003, Rapson and Cother reported for work at about 8.00 am (Victorian time) and were given their duties for the day, that being to boom spray cereal crops on the Wolseley property Broadleaves."
16
In the course of an interview conducted on 28 April 2004 Mr Shepherd responded to a question asking him about the time Mr Rapson commenced work as follows:-
"They left here, I believe they left from Neil Rapson's house at about 7.30 am Victorian time. Richard Cother had travelled from his property to Frances to meet Neil and then they drove to the worksite in Neil's vehicle ..."
17
In a further statement made in connection with these proceedings on 14 September 2004 Mr Shepherd stated: "I am adamant that on the particular day Rapson did not come out to Tooroot".
18
The learned Senior Judge does not appear to have resolved this conflict nor determined how or where Mr Rapson and Mr Cother were given their instructions for the day, and we expect he did not because of the way in which the case was run before him. We will return to this later.
19
Section 30 subsection (5) was introduced into the Act as a result of amendments made in 1994. The Full Supreme Court of South Australia considered the provisions in TransAdelaide v Karanicos (unreported, Supreme Court of South Australia, Doyle CJ, Millhouse and Williams JJ, Judgement No. S5536 of 1996, delivered 3 April 1996).
20
Doyle CJ, with whom the other members of the Court agreed, had this to say about the new provision. He said at par 5:-
"It is quite clear that the intention behind the new section 30 was to narrow the scope of what is a compensable disability. In particular, parliament chose to take a more restrictive approach than had previously been taken to the well known concept of a journey injury."
At par 14 he wrote:-
"The original statutory concept was 'the course of the employment' which now finds expression in section 30(2)(a). That was not a narrow concept."
He then made reference to the judgment of Barwick CJ in Danvers v Commissioner for Railways (NSW) (1969) 12 CLR 529 at 536 which talks about the expression 'in the course of employment' as including that which is incidental or ancillary to the employment, and speaks of the need to apply a liberal and practical approach to the issue.
21
The learned Chief Justice noted that section 30(5) speaks of "duties of employment" as being the qualifying expression and observed at par 20 that that expression "seems to be, if anything, a narrower expression than 'in the course of employment'".
22
He noted some tension between that provision and the general qualification for compensability contained in s 30(2)(a) and pondered whether s 30(5) was an exclusive code that involved an exception to s 30(2)(a). He noted at par 21 of his reasons that "this is an important question".
23
As it turned out, he felt that it was unnecessary to resolve the issue because he took the view that on the facts of the case before the court, whether the test was in the course of employment or carrying out duties of employment the circumstances satisfied neither.
24
In the course of his reasons the learned Chief Justice discussed the notion of 'carrying out duties of employment'. He said at par 22:-
"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 enquiry is not restricted to those things that 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."
25
He qualified this, however, at par 23 of his reasons:-
"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 ... 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."
26
The new subsection again came to the consideration of the Full Court of the Supreme Court in State of South Australia v Brophy (1997) 58 SASR 97.
27
Again Doyle CJ wrote the judgment of the court. Again he posed the question as to whether s 30(5) was an exclusive code. At p 104 he wrote:-
"However, it is again unnecessary to decide that point because, in my opinion, on the facts of this case it could not in any event be said that the disability arose out of or in the course of employment."
28
He again expressed the view that the expression 'in the course of employment' was a wider concept than 'duties of employment'.
29
The approach of the learned Senior Judge in the decision under appeal seems to reflect an understanding that:-
(i) the accident occurred in the course of a journey that was a journey for the purposes of s 30(5)
(ii) s 30(5) is an exclusive code that applies to such journeys
(iii) as such it was not sufficient that at the time of the accident Mr Rapson might have been in the course of his employment - what mattered was whether at the time he was carrying out the duties of his employment
(iv) the concept of 'duties of employment' is a narrower one than 'in the course of employment'.
30
All of these assumptions might be correct but they are not, in our view, free from doubt. Doyle CJ said as much in Karanicos and Brophy.
31
In our view s 30(5) is capable of being interpreted in a number of ways.
32
The Supreme Court has not expressly ruled on what 'journey' means. It plainly means a journey between a worker's place of residence and place of employment. It also includes journeys between a worker's place of residence or place of employment and educational institutions, places to receive medical services and the like. The sub section makes that clear. But beyond that?
33
Brophy concerned an accident that occurred whilst the worker was travelling from his place of employment to his place of residence. Karanokas involved a worker sustaining injury whilst travelling by bus from her place of employment to attend a medical appointment with a doctor in connection with an earlier compensable disability. Clearly they each involved a journey within the meaning of s 30(5).
Exactly what 'journey' means is important because that might be thought to influence the determination whether s 30(5) is an exclusive code and also whether the expression 'duties of employment' as it appears in that sub-section has a narrower meaning than the expression 'in the course of employment'.
35
As a specialist Tribunal that routinely deals with industrial accidents we are permitted to know that many people are employed in occupations that require them to travel and that for some occupations the notion of a static place of employment is virtually meaningless.
36
One might wonder if Parliament intended the district nurse who travels from one patient to the next, the travelling salesperson who moves from customer to customer and the employed taxi driver who is consistently on the road in search of a fare to be discriminated against by having to satisfy a more demanding test of compensability than a person employed at a static location.
37
One might think that the real mischief to which s 30(5) was directed was toward journeys that ordinarily have little to do with work, namely those described in s 30(5)(b) and that perhaps there has been a drafting error and that what was intended was as follows:-
(5) A disability that arises out of, or in the course of, a journey between -
(i) the worker's place of residence and place of employment; or
(ii) the worker's place of residence or place of employment and -
(A) 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
(B) 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,
arises from employment only if -
(a) the journey is undertaken in the course of carrying out duties of employment; or
(b) 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 the worker has an accident in the course of a journey to or from work does not in itself establish a connection between the accident and the employment for the purposes of subsection (5)(b). ...
38
Even if this was thought to be so it might be thought that Parliament's intention is not so clear-cut as to permit the provision being construed in this way, involving as it does the redrafting of the provision. See Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 per McHugh JA.
39
Another view might be as suggested by the learned Chief Justice in his obiter remarks that s 30(5) is an exclusive code that applies to all journey accidents. If this was so, it might be thought that this should colour the meaning to be ascribed to the expression 'duties of employment'.
40
Another view might be that Parliament did intend to discriminate against those whose occupations involve travel or that this was an unavoidable collateral consequence of its desire to address a more pressing need.
41
These issues have troubled the Tribunal for some time and its approach has not always sat well with the approach suggested by the learned Chief Justice in Karanicos and Brophy.
42
In The Corporation (The City Swim School) v Rowberry A 1 /1996, for example, the Workers Rehabilitation Appeals Tribunal reached a conclusion that might be thought surprising in light of the outcomes in Karanicos and Brophy. Although it was decided before Karanicos and Brophy, its approach has been applied in later cases before this Tribunal Amongst other things it applied the observations of Lord Lowry in Smith v Stages and Another (1989) 1 AC 928 at 955 in determining the test of compensability for the purposes of s 30(5). In Smith Lord Lowry wrote:-
"The paramount rule is that an employee travelling on the highway will be acting in the course of his employment, if, and only if, he is at the material time going about his employer's business. One must not confuse the duty to turn up for one's work with the concept of already being 'on duty' while travelling to it."
43
The case involved a worker who was employed by a regional swimming school as a part-time swimming instructor. She also had other employment. An arrangement was made whereby instructions or equipment required for a particular session would be left at her home and she would call past her home on the way to work to check whether anything had been left for her. Following her attendance at home for this purpose, the worker drove to the swimming centre and was involved in an accident.
44
The Tribunal found in the worker's favour. In its decision it made reference to another passage in Smith in which the House of Lords noted that return journeys are to be treated in exactly the same way as outward journeys in determining their appropriate characterisation. The Workers Compensation Tribunal arrived at the same conclusion in Mason v State of South Australia (Department of Education, Training & Employment) [2002] SAWCT 22 at par 38.
45
Although it was not strictly relevant to the ultimate outcome, the Tribunal also suggested in Rowberry that a place of residence can have a dual personality and in an appropriate case be a place of employment such that a journey from it to the place of employment can be seen as a journey from one place of employment to another.
46
In Russo v WorkCover Corporation/Mercantile Mutual Insurance (SA) Workers Compensation Ltd (SK & A Savas) [1999] SAWCT 70 the Tribunal had to deal with a claim for compensation in respect of injuries sustained by an employed taxi driver whilst he was walking to a shop to buy some food before returning to his taxi to attend a booking that he had just accepted.
47
It was argued in that case that because the worker was a taxi driver he was always in the course of a journey for the purposes of s 30(5) and accordingly unless he could satisfy the requirements of s 30(5) his injuries were not compensable.
48
The Tribunal rejected that submission. It wrote:-
"What if the worker's employment requires him or her to be constantly on the move. Should such a worker be regarded as constantly on a journey for the purposes of s 30(5)?
It would be odd if that was so because it would discriminate against such workers by limiting their access to the Act when there is no obvious reason why Parliament would intend to do so. It is one thing to isolate travelling away from the workplace and to treat such travel differently than activities undertaken at the workplace in respect of the scope of cover under the Act. It is another thing altogether to discriminate against a class of workers because their employment happens to involve continuous travel.
This leads me to conclude that such travel was not intended to be caught by s 30(5) such that ordinarily, a person whose job it is to travel about would not be regarded, whilst embarking upon such travel, to be on a journey for the purposes of the Act. If that person had finished for the day and was proceeding to travel to his or her home, that would be another thing altogether. But here, as the worker was "on the job", I would not regard his presence in the taxi cab on the day of the fall, as indicating that he was in the course of a journey."
49
The decision was upheld on appeal: WorkCover/Mercantile Mutual (Savas) v Russo [2000] SAWCT 23.
50
In Whiteley v The State of South Australia [1999] SAWCT 121 the Tribunal was concerned with a claim for compensation by a correctional services officer who was harassed by a former inmate while she was travelling on a bus on her rostered day off.
51
The primary submission of the employer in denying liability was that at the time of her disability the worker was in the course of a journey for the purposes of s 30(5) and that because she was not carrying out her duties of employment at the time the circumstances of her disability did not fall within the ambit of the provision.
52
In rejecting that submission the Tribunal wrote:-
"Here, the only relevance of the worker's travel and her presence upon the bus was that it was the scene of the event that gave rise to a disability. In all other respects the worker's travel and the incident giving rise to its stress were unconnected. In my view s 30(5) does not feature."
53
In Chadburn v The Queen Elizabeth Hospital (North Western Adelaide Health Services) JD 47/99 the Tribunal was faced with a claim for compensation by a worker in respect of injuries he received in a motor vehicle accident whilst travelling on his motor-bike from his home to the Regency Institute of TAFE where he was to attend classes as part of his apprenticeship. The evidence established that he commenced being paid by his employer sometime from 7.30 am on the day of the accident, some 20 minutes before the accident occurred.
54
It was submitted on behalf of the worker that because he was being paid when he suffered his accident he was in the course of his employment. It was submitted that s 30(5) is not a code to be automatically applied whenever an injury occurred during a journey.
55
The Tribunal rejected that submission. In doing so it did not seem to consider it especially significant that the worker was being paid at the time he was injured. (Compare CSR Ltd v McCourt (unreported Full Supreme Court, delivered 27 November 1997, Judgment No S6417).
56
It wrote:-
"The current, more limited, scope of s 30 is demonstrated by the commencing words of sub section (2) viz 'subject to this section' and the opening words of sub-section (5) viz 'a disability that arises out of, or in the course of, a journey arises from employment only if'. These words indicate that sub-section (2) is subject to the remainder of the section and that sub-sections (5) - (7) represent an exclusive code in relation to disabilities occurring in a journey. In light of the words and structure of the section the view expressed by the learned Chief Justice in both Karanicos (supra) and Brophy (supra) on this topic, although obiter dicta, is highly persuasive."
57
In Owen v Department of Education Training and Employment [2001] SAWCT 104, the worker, an assistant principal of a metropolitan high school, was injured while she was riding her bike home from school. She had intended upon reaching her home to go back to the school in her car to pick up some folders and files that were too heavy to carry on her bike. She planned to work on these over the weekend that followed.
58
The Tribunal accepted that the disability could only be compensable if it satisfied the requirements of s 30(5) of the Act. Having concluded that "the journey undertaken by [the worker] was not one for a private purpose namely merely a journey between her place of work and place of abode but was rather one step in a sequence of actions which would enable her to complete tasks at home on the evening in question and over the weekend that were directly work-related" the Tribunal found "that in undertaking the journey in this case the applicant was doing something reasonably incidental to the performance of her job".
59
This led the Tribunal to be satisfied that she was carrying out her duties of employment within the meaning of s 30(5)(a).
In reaching this conclusion, it might be thought that the Tribunal had formed the view that the expression 'duties of employment' had essentially the same meaning as the expression 'in the course of employment', a conclusion left open in Karanicos and Brophy.
61
The issue as to whether s 30(5) is an exclusive code, and if it is, whether the expression 'duties of employment' has a narrower meaning than the expression 'in the course of employment' might be important to the resolution of this case.
62
We return to the facts.
63
As noted earlier, because of the way in which the case was argued before him, the learned Senior Judge probably did not find it necessary to resolve the apparent conflict in the evidence between Mrs Rapson and Mr Shepherd as to how and where Mr Rapson received his instructions for the day.
64
Had he addressed that issue it might have been open for him to find that Mr Rapson had attended at the property at Tooroot on the morning of the accident to receive his instructions for the day, including an instruction to take Mr Cother with him to Wolseley.
65
We are tentatively of the view that the matter will need to be remitted to the learned Senior Judge to make appropriate findings about this issue because on this view of the facts it might be concluded that having commenced work for the day Mr Rapson was directed to attend at a certain place (which happened to be his place of residence) for the purposes of collecting a co-employee to drive that co-employee to a property where both were to work.
66
On these findings, and if the observation about the status of return journeys expressed in Rowberry and Mason is correct_,_ it might be concluded that when he died Mr Rapson was driving as part of his duties of employment to a designated place so as to permit his co-employee to collect his vehicle to drive home.
67
If s 30(5) has the meaning suggested in par 38 herein, and if the observation in Rowberry about the capacity for a place of residence to have a dual personality is correct, it might be arguable on any view of the facts that s 30(5) does not apply in this case.
68
Even if the finding was that Mr Rapson left for work at Wolseley from his home at Frances the limitations, or perhaps lack thereof, that apply to the expression 'duties of employment' relative to the expression 'in the course of employment' might be significant in determining the outcome of this case.
69
If the difference between these expressions is as minimal or non-existent as the decision in Owen would suggest, one might conclude that on any view of the facts the deceased was carrying out his duties of employment at the time of his fatal accident.
70
On the other hand, it might be thought that the approach taken in Rowberry and in many of the cases decided by this Tribunal reflect a misunderstanding of s 30(5) and warrant correction.
71
Subject to receiving submissions from counsel, we are inclined to think that this Tribunal might benefit from guidance from the Full Court of the Supreme Court on these issues and we are minded to exercise the powers conferred upon us by s 86(A) of the Act to state a case on a question of law for its opinion and in particular to seek the answers to the following questions:-
(1) Is s 30(5) an exclusive code in respect of journeys?
(4) Are return journeys to be treated in exactly the same way as outward journeys in determining their appropriate characterisation for the purposes of s 30(5)?
72
We invite counsel to reflect upon these preliminary observations and to make further submissions to us regarding the future conduct of this matter.
Rapson
WorkCover Corporation/Allianz Australia Workers Compensation
(1969) 12 CLR 529
(1997) 58 SASR 97
(1988) 15 NSWLR 292