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[2007] SAWCT 46
General information, not legal advice.
Workers Compensation Tribunal (SA)
2007-08-31
Original judgment source is linked above.
1 This is an appeal from the learned President that concerns the rejection of a claim for compensation made pursuant to the Workers Rehabilitation and Compensation Act 1986 that arises out of fatal injuries sustained by Kevin Neil Rapson in a motor vehicle accident that occurred on 30 September 2003.
2 The case has an unfortunate history that has to a large extent been contributed to by the parties' failure to ensure that the material placed in the Appeal Book that was put before us faithfully represented the material that was tendered at trial.
3 The issues that arise on the appeal concern whether on the facts found the learned President reached the correct conclusion, whether there were further facts that he should have found, whether that is an appealable error and if so whether in light of them a different conclusion should have been reached.
Background facts
4 The following background facts are taken from the preliminary views expressed by us on 26 June 2006[1] in connection with our tentative view that we ought to state a case for the consideration of the Full Court of the Supreme Court of South Australia.
5 Mr Rapson was employed as a general farm hand by F Westphal Nominees Pty Ltd, a company that operated several farming properties near the South Australian and Victorian border adjacent to an area known as the Little Desert.
6 One of its properties is known as Tooroot and it is located in an area of Victoria known as Minimay. Another is Broadleas and it is located in an area of South Australia known as Wolseley.
7 Mr Rapson lived in South Australia in the town of Frances, which is about 25 kilometres west of Minimay and 50 kilometres south of Wolseley.
8 Another employee of Westphal, Mr Cother lives in Minimay.
9 On the day of the accident and in accordance with directions given to them by Westphal, Mr Rapson and Mr Cother sprayed cereal crops at Westphal's Broadleas property in Wolseley.
10 Because Minimay, Frances and Wolseley all border the Little Desert the only way of getting from Minimay to Wolseley is via Frances.
11 Westphal supplied both Mr Rapson and Mr Cother with utility vehicles to be used in connection with their work as farm hands.
12 It is clear that on the day of the accident Mr Cother drove his utility to Mr Rapson's home in Frances, left his utility there and travelled with Mr Rapson in Mr Rapson's utility to Wolseley.
13 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.
14 The accident occurred in the course of the journey. Accordingly, to be compensable, it had to satisfy the special provisions provided for by s 30(5) of the Act.
15 To succeed, Mr Rapson's widow, who has made this claim on her own behalf and on behalf of Mr Rapson's children, needed to establish that either the journey was undertaken in the course of Mr Rapson carrying out his duties of employment or, given that the accident occurred between Mr Rapson's place of residence and his place of employment, that there was a real and substantial connection between the employment and the accident out of which the disability arose.[2]
The hearing before the learned President
16 At trial the learned President had placed before him a Trial Book that contained statements from Mrs Rapson, Mr Cother, and Mr Shepherd, a director of Westphal.
17 In her statement Mrs Rapson said that on the day of the accident Mr Rapson left their home at about 7.15 am South Australian time. She said it was about a ten to fifteen minute drive from Frances to Minimay. She said that Mr Rapson was normally required to start work at 8.00 am Victorian time.
18 She herself left Frances at about 9.00 am that day and returned at about 11.30 am when she noticed Mr Cother's utility parked in the driveway of their home.
19 Mr Cother, who suffered serious head injuries as a result of the accident, only had a very limited recollection of what had transpired on the day of the accident.
20 He recalled going to Tooroot at about 8.00 am and being requested to go to Wolseley to spray crops and of going there with Mr Rapson.
21 Mr Shepherd's statements identified Mr Rapson's duties as including cropping, harvesting, spraying, irrigation, sheep work, general tractor driving and fencing, drenching and crutching sheep, maintenance on machinery and irrigators and service works on utilities and motor bikes.
22 He stated that he instructed Mr Rapson and Mr Cother to go to the property at Wolseley and that he instructed Mr Cother to go with Mr Rapson in Mr Rapson's utility.[3]
23 As part of the police inquiries into the accident Mr Shepherd spoke to Senior Constable Martin on 23 February 2004 and gave a statement that was included in the material placed before the learned President.[4]
24 In that statement Mr Shepherd records:-
"On Tuesday 30th September 2003, RAPSON and COTHER reported for work at about 8 am (Victorian time) and were given their duties for the day, that being to boom spray cereal crops on the Wolseley property Broadleas."
25 Mr Shepherd provided a further statement dated 27 September 2005 that was tendered before the learned President. In it he said:-
"On 30 September 2003 Cother travelled from his home in Minimay to Rapson's property in Frances in his work vehicle."
"On 30 September 2003 I understand Cother and Rapson reported for work at about 8 am (Victorian time)."
27 On the basis of these statements the learned President made the following findings of fact:-
•
Mr Rapson was employed by Westphal.
•
Mr Rapson's duties were as described by Mr Shepherd in his statements.
•
The work instructions given by Mr Shepherd to Mr Rapson and Mr Cother on 30 September 2003 were as per the information contained in Mr Shepherd's statements.
•
That Mr Rapson and Mr Cother were directed not to take both company vehicles to Wolseley and they travelled together.
•
The utility was provided by Westphal for Mr Rapson for strictly work use "travelling to and from work and between worksites".
•
At the end of the day's work at Wolseley Mr Rapson and Mr Cother would drive back to Mr Rapson'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.
28 He did not, however, think that these were sufficient to uphold Mrs Rapson's claim. He said:-
"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 ... 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. ... The fact that the worker and Mr Cother were directed to travel together in one company owned vehicle, as they did on 30 September 2003, is not sufficient in my view to properly characterise the return journey of the worker as being 'undertaken in the course of carrying out duties of employment', nor in my view was there a 'real and substantial connection between the employment and the accident'."[5]
Material not tendered at trial is erroneously included in the Appeal Book
29 The clear effect of Mrs Rapson's evidence was that when Mr Rapson left their home on the morning of the accident he went to Wesphal's Tooroot property at Minimay first. Taken with the other statements to which we have referred the only reasonable findings that could have been reached were that:-
•
When Mr Rapson got to Tooroot Mr Shepherd instructed him to work at Wesphal's Broadleas property at Wolseley and that he was to go there in his company supplied vehicle with Mr Cother.
•
He drove back to his house at Frances in tandem with Mr Cother and in accordance with Mr Shepherd's instructions the two men then travelled in Mr Rapson's vehicle to Wolseley.
30 What troubled us on the appeal hearing in May 2006 was that erroneously placed within the Appeal Book was another statement dated 14 September 2004 that was unsigned but attributed to Mr Shepherd. It included: "I am adamant that on the particular day Rapson did not come out to Tooroot".[6]
31 Unsurprisingly, we assumed that this formed part of the evidentiary material that had been placed before the learned President. Based on it we were under the impression that Mr Rapson's movements prior to travelling from Frances to Wolseley on the day of the accident were a matter of some conjecture.
32 We therefore were tentatively of the view that the matter would need to be remitted for re-hearing to resolve this apparent conflict regarding Mr Rapson's movements.
33 We thought that if the statement of 14 September 2004 was correct it weakened the submission that in driving Mr Cother to and from Wolseley Mr Rapson was carrying out his duties of employment. In that context we thought that this case might provide an appropriate vehicle to determine the question that was left unanswered by the learned Chief Justice in TransAdelaide v Karanicos[7] and State of South Australia v Brophy.[8] That is the question as to whether there is any difference between the expression "duties of employment" as it appears in s 30(5)(a) of the Act and the expression "in the course of employment" which relevant authorities have held to be a broad concept sufficiently wide to embrace activities incidental to employment. After consultation with the parties we stated a case but it did not yield the answers that we sought.[9]
34 In any event it is now accepted by the parties that the statement dated 14 September 2004 was not part of the material placed before the learned President. In light of this, the conflict in the evidence that troubled us never existed.
On the evidence presented at trial a crucial finding of fact is not made
35 With respect, a crucial finding that was not made and which the evidence presented at trial commanded be made, was that Mr Rapson had already reported for work at Tooroot prior to returning to his home at Frances such that the journey that he made from Frances to Wolseley was not to get from home to work.
36 The facts of this case highlight the points made by Sir John Donaldson MR in Nacollas v Insurance Officer[10] about "the importance [in cases such as this] of looking at the factual picture as a whole" and the recognition that "[t]he addition or subtraction of one factor in a given situation may well tip the balance."
37 It is not necessary for us to decide whether on the facts found the learned President reached the correct conclusion, because when this further fact is added to the other undisputed facts, namely:-
•
Mr Rapson's employer had supplied him with a vehicle for the express purpose of travelling to and from his home to its various properties, between its various properties and in connection with his work generally; and
•
Mr Rapson was directed by Mr Shepherd to take Mr Cother with him to Wolseley and implicitly was directed by Mr Shepherd to bring Mr Cother back so that he could retrieve his car (which was also owned by Westphal);
the only conclusion that could reasonably have been reached was that in undertaking the journey from Wolseley to Frances on the evening of the accident Mr Rapson was within working hours, carrying out instructions given to him by his employer.
Conclusions
38 It is settled law that to make a finding of fact in the absence of evidence is an error of law.[11] It must follow that to fail to make a crucial finding of fact that the evidence compels to be made is also an error of law. The learned President's failure to make the finding referred to at par 35 above was, with respect, an error of law. On the facts as they should have been found the journey that Mr Rapson was undertaking when he died was in the course of him carrying out his duties of employment. With respect, the learned President was wrong to conclude otherwise.
39 Accordingly, we allow the appeal and substitute the finding made by the learned President with a finding that the deceased died in compensable circumstances.
40 There may be issues of quantum relating to Mrs Rapson's claim and the claim made on behalf of Mr Rapson's children.
41 If these cannot be resolved by agreement the learned President should determine them. We remit the matter back to him for that purpose.
[1] Rapson v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (F Westphal Nominees Pty Ltd) [2006] SAWCT 48.
[2] See s 30(5)(a) and (b) of the Act
[5] Rapson v WorkCover/Allianz Australia Workers Compensation (SA) Ltd (F Westphal Nominees Pty Ltd) [2005] SAWCT 105 at paras 47 and 49.
[7] (unreported Supreme Court of South Australia judgment no. 5536 of 1996 delivered 3 April 1996).
[9] Rapson v WorkCover Corporation [2007] SASC 172.
[10] [1985] 1All ER 833 at 840.
[11] See for example: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355 - 6.
Rapson
WorkCover Corporation/Allianz Australia Workers Compensation
(1990) 170 CLR 321
(1997) 58 SASR 97