J Holloway Developments Pty Ltd T/As the Joe Holloway Family Trust (Employer)

1. The time for Barry Smith to refer to the Tribunal the decision of the Motor Accidents Insurance Board dated 15 January 2024 to reject his claim for scheduled benefits is extended to 25 February 2025, pursuant to Regulation 4(4)(b) of the Motor Accidents (Liabilities and Compensation) (Tribunal) Regulations 2019.
2. The decision of the Motor Accidents Insurance Board dated 15 January 2024, that scheduled benefits are not payable to Mr Barry Smith in respect of the motor accident on 13 January 2024 is set aside.
3. The Motor Accidents Insurance Board is to pay the benefits prescribed by the Motor Accidents (Liabilities and Compensation) Regulations 2020 in respect of personal injury suffered by Mr Smith resulting directly from the motor accident on 13 January 2024.

Motor vehicle accident - Claim for scheduled benefits rejected by Motor Accidents Insurance Board - Whether time to refer Board's decision to Tribunal should be extended - Whether injuries from motor accident suffered out of or in the course of applicant's employment

Tasmanian Civil and Administrative Tribunal Act 2020, s 96;

Motor Accidents (Liabilities and Compensation) Act 1973, ss 23, 24, 25, 28;

Workers Rehabilitation and Compensation Act 1988, ss 3, 25, 42, 81A, 97;

Motor Accidents (Liabilities and Compensation) (Tribunal) Regulations 2019, reg 4;

Motor Accidents (Liabilities and Compensation) Regulations 2020.

OT v Asbestos Compensation Commissioner [2024] TASCAT 209;

Nazar v Hydro Electric Corporation [2022] TASFC 11;

Humphrey Earl Ltd v Speechley [1951] HCA 75;

Hatzimanolis v ANI Corporation Ltd [1992] HCA 21;

Comcare v PVYW [2013] HCA 41;

Vandyke v Fender [1970] 2 QB 292;

Motor Accidents Insurance Board v Cook [2013] TASFC 4;

Cook v Buckingham [2012] TASSC 53.

1. This determination involves questions arising out of a motor vehicle accident in which the applicant, Mr Barry Smith, was involved on Friday 13 January 2024 (the motor accident).
2. Mr Smith suffered injuries in the motor accident.
3. Mr Smith made a claim for scheduled benefits from the Motor Accidents Insurance Board (the Board) in respect of the injuries he sustained in the motor accident.
4. Section 24(1)(b) of the Motor Accidents (Liabilities and Compensation) Act 1973 (the MALC Act), in part, provides that scheduled benefits are not payable in respect of any injury for which compensation by an employer is payable
5. On 15 January 2024, the Board rejected the claim on the basis that the motor accident occurred in the course of Mr Smith's employment.
6. Mr Smith subsequently made a claim for workers compensation against his employer. His employer disputed liability to pay workers compensation in respect of the injuries sustained in the motor accident. The employer said it was reasonably arguable that the injury did not arise out of or in the course of Mr Smith's employment with the employer on 13 January 2024. The employer's referral, pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act), was heard by me on 6 August 2024 and I made a determination that the employer had established there was a reasonably arguable case in respect of its liability to pay workers compensation to Mr Smith in respect of his workers compensation claim.
7. On 24 February 2025, Mr Smith, being 'a person aggrieved' by the Board's refusal to accept the claim, referred the matter to the Tribunal. The grounds for the referral were expressed as follows:

That the accident of 14 January 2024 does not qualify as an accident for which a policy of insurance is required to be maintained as per s 97(1) of the Workers Rehabilitation and Compensation Act 1988, for the following reasons: > > (1) As per s 25 of the Workers Rehabilitation and Compensation Act 1988 Mr Smith was not travelling during the course of employment; and or in the alternative, > > (2) Was not travelling at the request or direction of his employer. > > Therefore the accident invokes the Motor Accidents Insurance Board's general liability in respect of motor vehicle accidents as per s 25 of the [Motor Accidents (Liabilities and Compensation) Act 1973].

8. In light of the fact that the apparent dispute between Mr Smith and the Board related to whether Mr Smith, at the time of the accident, was travelling in the course of his employment, or at the request or direction of the employer, it was my view that those issues ought not to be determined without the employer having the opportunity to participate in the proceedings. I considered that for the purposes of s 96 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) the employer's interests were potentially likely to be affected by the proceedings, and that there would be a benefit to the Tribunal in having the employer's participation in the hearing. As matters eventuated, the employer consented to be joined to the proceedings pursuant to s 96 of the TASCAT Act.
9. The matter was listed for hearing on 10 February 2026. By the time of the commencement of the hearing it appeared that Mr Smith, contrary to the terms of the referral filed in the Tribunal, now maintained that the Board was not liable to pay scheduled benefits to him under the MALC Act, but rather that the employer ought to bear liability for the injuries sustained in the motor vehicle accident on 13 January 2024, in accordance with the WRC Act.
10. After the hearing concluded, written submissions were exchanged between the Board and the employer, and the proceedings were listed for final submissions. In the Board's written submissions, a jurisdictional point was raised.
11. This decision deals first with the jurisdictional point that was raised by the Board in concluding submissions. If I determine that the Tribunal has jurisdiction to hear these proceedings, I then need to determine the matter that Mr Smith has referred to the Tribunal - that is, the Board's decision that Mr Smith is not entitled to be paid scheduled benefits under the MALC Act because, at the time of the accident, he was neither travelling in the course of his employment, nor at the request or direction of his employer.

1. Under s 28(1) of the MALC Act, the Board is required to determine whether a person is to be treated as a person to whom scheduled benefits may be paid. Pursuant to s 28(2) of the MALC Act, a person who is aggrieved by a determination of the Board may refer the matter to the Tribunal.
2. Regulation 4 of the Motor Accidents (Liabilities and Compensation) (Tribunal) Regulations 2019 (the MALC(T) Regulations) provides that a person may refer a matter to the Tribunal under s 28(2) by giving written notice and a copy of relevant documents to the President of the Tribunal. Regulation 4(4) provides:

A person is to give notice under subregulation (2)(a) within - > > (a) 14 days after the person is notified of a determination or refusal of the Board or becomes aware of the failure of the Board to make a payment by way of a scheduled benefit; or > > (b) any further period that the Tribunal, on application by the person, considers reasonable.

3. The decision of the Board to decline Mr Smith's application for payment of scheduled benefits was forwarded to Mr Smith by letter dated 15 January 2024.
4. The Board's decision was referred to the Tribunal under s 28(2) of the MALC Act by Mr Smith's then solicitors on 24 February 2025.
5. On the face of the referral, it was made out of time by approximately thirteen months.
6. In its written submissions, filed after the conclusion of the evidence, the Board said that Mr Smith had not made any application for an extension of time under reg 4(4)(b) of the MALC(T) Regulations, and the referral ought to be dismissed because the Tribunal did not otherwise have jurisdiction to hear the referral.
7. The jurisdictional point had not previously been raised by the Board in any directions conference before me, or in the course of the hearing. Counsel advised me that the issue had been raised with the solicitors who had been acting for Mr Smith when the matter was first listed for a preliminary teleconference before one of the Tribunal's Senior Case Officers.
8. When the jurisdictional issue was explained to Mr Smith, he said that he had been given legal advice by his (then) lawyers to 'leave the Board alone' but then had later been advised by the same lawyers to pursue proceedings against the Board because the employer 'had no money'. Mr Smith said that he had only done as he had been told. He further said that the parting of the ways between himself and his lawyers had 'done his head in' and that he had mental issues over it. He said that between October 2024 and early 2025 he had a lot going on, and that he had been 'zonked out' by the heavy painkillers he was taking.
9. Counsel for the Board conceded that reliance by Mr Smith on legal advice provided an explanation for at least part of the delay in referring the Board's decision to the Tribunal, but did not provide an explanation for the entire period between the end of January 2024 and February 2025.
10. Regulation 4 of the MALC(T) Regulations gives the Tribunal an unfettered discretion to extend the time for a referral under s 28(2) of the MALC Act to be made.
11. Principles relevant to a general discretion to extent time to commence proceedings were considered by Senior Member Chandler in OT v Asbestos Compensation Commissioner [2024] TASCAT 209 at [15]:

...some guidance upon the matters to be considered is provided by Colvin J in Ghimire v Karriview Management Pty Ltd [2019] FCA 1108 where it was stated: > > There are a number of matters that the Court will usually take into account when considering whether to grant an extension of time. Speaking broadly, special circumstances need not be shown but the Court must be positively persuaded that it is proper for there to be an extension. As to particular matters: > > There should be an adequate explanation for the delay. Generally, mere ignorance of the time limit is not a satisfactory explanation for the delay. A party wanting to appeal may be expected to investigate or enquire about the procedure and time limits for bringing an appeal. > > The extent to which the applicant has taken steps to challenge or dispute the relevant decision in the intervening period will be considered. > > If the outcome can be confidently predicted at the leave stage, it will seldom be in the interests of justice to grant leave where an appeal has little or no prospects of success because of the considerable additional cost and the impact on other litigants who have abided by time limits and are waiting for their appeals to be heard. However, the merits should be examined at a reasonably impressionistic level. The Court does not go into the merits in great detail and assesses the merits in a fairly rough and ready way. > > The Court's view as to the strength of the claim may itself be a matter that is to be weighed with other matters so the fact that the claim might be viewed at the time of the application for an extension to be strong or weak is relevant. > > Prejudice to the respondent, including prejudice that will be occasioned by having to defend the proceedings, is a material factor against the grant of an extension. The extent of that prejudice (which may vary depending upon the financial and other circumstances of the respondent), must be considered with some care. > > Consequences for third parties should be brought to account, particularly more wide-ranging effects that might flow if an appeal were allowed despite a period of delay. > > Those matters are not exhaustive and they are not rules to be rigidly applied. Also, it must be kept in mind that the Court has a general discretion to be exercised by reference to the particular circumstances of each case.

1. I consider it is appropriate for me to exercise my discretion to extend the time for Mr Smith to refer the Board's decision to the Tribunal.
2. Mr Smith's explanation for the delay in making the referral is not as detailed as would usually be expected in these kinds of matters. I accept that the jurisdictional issue was raised with Mr Smith's solicitors at some point in a Tribunal teleconference, but it was not raised further with Mr Smith, nor was the issue raised again before the Tribunal in any directions hearing. The evidence in the ultimate hearing had concluded by the time the issue was once again raised as part of the Board's closing submissions.
3. I have regard to the following:
   • Mr Smith was notified about the Board's rejection of his claim for scheduled benefits by a letter from the Board that was dated 15 January 2024. The time for Mr Smith to refer that decision to the Tribunal under the MALC(T) Regulations expired on, or about 30 January 2024.
   • Mr Smith completed his workers compensation claim form on 12 February 2024, and gave it to is employer around that time, but did not deliver a workers compensation medical certificate at the same time.
   • Mr Smith's claim for worker's compensation against his employer was perfected in June 2024 when a worker's compensation medical certificate in respect of the claim was provided by Mr Smith's lawyers to the employer's lawyers.
   • The Tribunal made a finding on 6 August 2024 that a reasonably arguable case existed concerning the employer's dispute of the claim.
   • On behalf of Mr Smith, in July 2024, his lawyers referred his claim for workers compensation back to the Tribunal under s 42 of the WRC Act, seeking a determination of Mr Smith's entitlement to workers compensation
   • Correspondence of the Tribunal's worker's compensation file indicates that in September 2024, Mr Smith's lawyers were in communication with the Board with respect to a claim for scheduled benefits
   • On 9 October 2024, the s 42 referral was dismissed in accordance with a consent memorandum filed by the worker's solicitors.
   • The referral of the Board's decision was filed in the Tribunal on 24 February 2025.
4. From at least June 2024 until 24 February 2025, Mr Smith was legally represented. I accept that he was effectively in the hands of his lawyers throughout that period in respect of how to proceed in his efforts to obtain compensation for the injury from the motor accident.
5. It was not unreasonable, after receiving the Board's decision to reject his claim for scheduled benefits on the basis that the motor accident in question was work- related, for Mr Smith to turn his attention to seeking workers compensation. That he did so is evidenced by him completing the workers compensation claim form on 12 February 2024 and giving it to his employer.
6. The question of prejudice to the Board attracts little weight in circumstances where the need for Mr Smith to seek an extension of time to appeal the Board's decision was pressed before the Tribunal only at a time where the hearing had already commenced and the evidence had been concluded.
7. I determine that the time for Mr Smith to refer to the Tribunal the Board's decision dated 15 January 2024 to reject his claim for scheduled benefits is extended to 25 February 2025, pursuant to reg 4(4)(b) of the MALC(T) Regulations.

1. The liability of the Board to pay scheduled benefits in respect of a motor vehicle accident is established by s 23 of the MALC Act, which (relevantly for these proceedings) provides:

(1) The Board must pay the benefits prescribed by the regulations if a resident of this State suffers personal injury resulting directly from a motor accident and - > > (a) the motor accident occurs in this State;

2. Section 24 of the MALC Act excludes liability in certain circumstances, including (again, relevantly for these proceedings):

(1) Notwithstanding section 23, scheduled benefits are not payable in respect of the personal injury to a person in any of the following cases: > > (a) ...; > > (b) Where compensation is payable in respect of that personal injury under any law of this State or of the Commonwealth or of any other State or Territory of the Commonwealth that relates to the payment of compensation by an employer in respect of the personal injury to persons in his or her employment occurring in connection with that employment;

3. The WRC Act governs the payment of compensation in respect of personal in\jury arising from employment.
4. Section 25 of the WRC Act relevantly provides:

(1) If in any employment - > > (a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or > > (b) ...; > > his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act - > > (c) to the worker...

5. Section 25 of the WRC Act also provides some exclusions in relation to the liability of an employer, including:

(6) For the purposes of this section, an injury does not arise from a worker's employment if it occurs - > > (a) while the worker is travelling in either direction between the worker's place of residence and the worker's place of employment, except where that journey occurred - > > (i) at the request or direction of the employer; or > > (ii) if the journey is work related, with the authority (expressed or implied) of the employer; or > > (b) while the worker is travelling between places where the worker is employed by different employers; or > > (c) while the worker, on a working day, is temporarily absent from the worker's place of employment, except where that absence occurs at the request or direction, or, if it is work related, with the authority (expressed or implied), of the employer; or > > (d) during a social or sporting activity which takes place away from the worker's place of employment, except where the worker's involvement in that activity forms part of the worker's employment or is undertaken at the request or direction, or with the authority (expressed or implied), of the employer. > > (7) For the purposes of subsection (6)(a)(ii), a journey is not work related by reason only of the fact that it is for the purpose of enabling a worker to travel - > > (a) to his or her place of employment from his or her place of residence; or > > (b) to his or her place of residence from his or her place of employment.

1. The Board and the employer filed and relied upon the following agreed matters. It is my understanding that Mr Smith does not disagree with these matters:
   • The employer carries on a farming business near St Helens on the east coast of Tasmania. The business is split across two different properties. The northern property is known as Ansons Meadows Farm (Ansons Meadows), and the southern property is known as Orana Farm (Orana).
   • Mr Smith was employed as a farmhand with the employer. He was a worker within the meaning of s 3 of the WRC Act. He lived in a cottage at Orana Farm which he rented from the employer. That was his place of residence.
   • Mr Smith worked at both Ansons Meadows and Orana, as directed by his employer.
   • Mr Smith's immediate supervisor was Mr Jeffrey Rice, who was employed by the employer as an operations manager.
   • The employer owned a truck (the work truck). It was used from time to time for work purposes. Mr Rice had the authority of the employer to direct whom used the work truck and when.
   • On Friday 12 January 2024, Mr Smith was scheduled to work with Mr Rice at Ansons Meadows. Mr Smith travelled to work at Ansons Meadows in his personal vehicle.
   • Towards the end of the day, there was an exchange between Mr Rice and Mr Smith.
   • As a result of the exchange between Mr Smith and Mr Rice, Mr Smith left work for the day on Friday 12 January 2024 and drove the work truck back to Orana. The work truck had a tractor loaded on the back of it.
   • The purpose of taking the work truck loaded with the tractor to Orana was for Mr Smith to work the following morning by using the tractor to feed out hay to stock at Orana.
   • On the morning of Saturday 13 January 2024, Mr Smith fed out using the tractor.
   • Later in the day, Mr Smith drove the work truck from Orana to Ansons Meadows to collect his private vehicle. The tractor remained at Orana.
   • The road between Orana and Ansons Meadows is a relatively dangerous road with little phone reception coverage.
   • Whilst driving from Orana to Ansons Meadows on 13 January 2024 Mr Smith was involved in a single vehicle accident, which was the motor accident from which these proceedings arise. He sustained a number of injuries (the injury).
2. I make findings of fact in respect of all of the matters above.

1. A direction that I made for Mr Smith to file and serve a witness statement prior to the hearing, in accordance with the Tribunal's General Division Practice Direction 3 was not complied with. Ultimately the hearing proceeded by Mr Smith adopting a witness statement signed by him on 1 October 2024 that had been filed in support of the referral to the Tribunal that was made on 21 February 2025.
2. Mr Smith's witness statement dated 1 October 2024 relevantly included the following evidence:

As part of my employment with [Mr Holloway], I was provided with a property on one of his sites, [Orana]. Which I would rent for $250.00 per week. This was part of my employment with [Mr Holloway]. > > On 12 January 2024 I was working at Ansons [Meadows] with the manager Jeff Rice. When I finished my shift, Jeff told me to leave my personal vehicle at Ansons [Meadows] and drive the tractor back to [Orana] as I would need it the next day to work. The tractor was to be transported by truck. > > As directed, I left my personal vehicle at Ansons [Meadows] and drove the truck with the tractor transported in the back, to [Orana]. Jeff told me to return the truck the next day and leave the tractor at [Orana]. > > On 13 January 2024, I worked in the morning, starting at approximately 7.30am at [Orana]. I used the tractor to feed the hay to the cattle and fill the feed carts up. I then drove the work truck back to Ansons [Meadows] from [Orana]. I was intending to pick up my personal vehicle and attend some personal appointments. > > At approximately 11am, I was driving the work truck back to Ansons [Meadows] to obtain my personal vehicle when the accident happened

3. Mr Smith's oral evidence included:
   • He had driven the work truck many times at both farms, including driving between Ansons Meadows and Orana
   • Because the road between the two farms was so dangerous, there was an arrangement where workers driving from one to the other would call ahead to let someone at the destination know they were on the way. The arrangement sometimes fell down because of phone reception difficulties
   • He usually worked Monday to Friday inclusive, but that he had developed a medical condition that sometimes required him to attend for medical treatment during the week. He said that he was given time to attend those appointments, and that Mr Rice would then organise for him to do some work on the Saturday to make up for the time lost during the week.
   • Mr Rice had stipulated that Mr Smith was not to use the truck for personal reasons only for work.
   • It was his practice to do his grocery shopping every weekend for the upcoming week. He would drive to St Helens, do his shopping, help a friend, have a meal at the local RSL and drive home. To do his weekly shopping he needed his personal vehicle.
   • St Helens was about fifteen minutes by car from Orana, and about 45 minutes to one hour by car from Ansons Meadows.
   • On Friday 12 January 2024, towards the end of the working day at Ansons Meadows, Mr Rice asked him to transport the tractor on the back of the work truck to Orana. Mr Rice directed him to use the tractor to feed out cattle at Orana the following morning - that is, Saturday 13 January 2024. Mr Rice told him that after he had completed the job of feeding out the cattle, the rest of the day was his own.
   • Mr Rice told him if he needed his personal car over the weekend, he would need to bring the work truck back.
   • Mr Rice did not tell him that he could return the work truck on Monday.
   • On Saturday 13 January 2024, he started work feeding out at about 7:00am and was finished by about 11:00am to 11:30am. He had an early lunch, and after that he drove back to Ansons Meadows in the work truck. The tractor remained at Orana
   • He tried to contact Mr Rice by phone before he left, but was unable to get through to him
   • His intention was to collect his personal vehicle from Ansons Meadows, and to drive straight to St Helens for his usual routine involving grocery shopping and the like.
   • It was also his intention when he was at Ansons Meadows on 13 January 2024 to undertake some work-related tasks involving filling up a petrol bowser on his personal vehicle that he would later use to refuel particular farm equipment ('a dozer') to save time later on a working day.
   • It was not possible for him to get back to Ansons Meadows from Orana on 13 January 2024 by any means other than using the work truck, including by getting a lift with a friend or catching a cab.
   • After the motor accident, while he was in hospital, a social worker helped him fill in the paperwork to make the claim against the Board.
4. Mr Smith was asked about his feelings towards his former employer. It is clear from Mr Smith's answers that he has very strong and very negative feelings about Mr Holloway. He denied that he was seeking to make his employer liable for his claim so that he could get back at Mr Holloway.
5. The evidence given by Mr Smith about his intention to undertake some work-related tasks at Ansons Meadows when he returned the work truck on 13 January 2024 was not included in the witness statement. It was put to Mr Smith that it was usually Mr Rice who undertook the task of filling the dozers, and that Mr Rice had not asked him to do that task. Mr Smith disagreed with both those propositions. It was also put to Mr Smith that the employer had never asked him to do that particular task. He said that was wrong, because he had been asked to help Mr Rice wherever he could.

1. A witness statement by Mr Jeffrey Rice dated 21 November 2025 was tendered and Mr Rice gave evidence.
2. Mr Rice's evidence included:
   • When Mr Smith had driven the work truck between the two farms in the past it had only occurred at Mr Rice's direction
   • There was no work that Mr Smith had to do after he had fed out the cattle on the morning of 13 January 2024.
   • No other person needed to use the work truck that weekend. The truck would next be required at Ansons Meadows on the following Monday.
   • On 12 January 2024, he and Mr Smith discussed Mr Smith taking the work truck back to Orana, and Mr Smith was happy to do so. Mr Rice said that Mr Smith would be doing him a favour if Mr Smith took the tractor to Orana using the work truck.
   • Mr Smith could have refused to take the work truck back to Orana at the end of the day. Mr Rice would not have made him do it. If Mr Smith had not taken the tractor to Orana on the work truck that day, it would have meant that Mr Rice would have had to stop what he was doing, and transport the tractor himself.
   • He specifically authorised Mr Smith to drive the work truck back to Ansons Meadows if Mr Smith needed to collect his car at the weekend
   • On 13 January 2024, he was not aware that Mr Smith was driving from Orana to Ansons Meadows until he received a phone call from someone who had driven past the accident scene and recognised the work truck.
3. In his witness statement, Mr Rice confirmed the existence of the arrangement for people travelling between the farms to phone ahead to the destination farm to let someone know they were on the way. He said had not received any communication from Mr Smith to advise he was travelling between the farms on the day of the motor accident.
4. Mr Rice was asked about the dozers being re-fuelled. He said that ninety percent of the time, he was responsible for refuelling them. Sometimes Mr Smith would do the job if Mr Rice was 'under the pump'.

1. Mr Smith was not an impressive witness. On many occasions he was rude, dismissive and evasive. He frequently refused to answer questions, instead making statements detailing his own position. When directed to listen to the questions being put to him, and to answer those questions, he responded by lolling back in his chair, staring at the ceiling behind his shoulder and answering in an impatient and dismissive tone. His responses, particularly to counsel for the employer (whose cross examination of Mr Smith was conducted with considerable patience) were frequently argumentative and hostile. Mr Smith's oral evidence, in significant respects differed from the written statement of evidence that he had signed on 1 October 2024
2. Mr Rice gave evidence thoughtfully. He no longer holds employment with the employer. His evidence appeared to be balanced and impartial. As a witness, he was far more impressive than Mr Smith. Where his evidence conflicts with the evidence of Mr Smith, I prefer the evidence of Mr Rice.
3. I do not accept Mr Smith's oral evidence that when he drove the work truck from Orana to Ansons Meadows on 13 January 2024, he intended, at least in part, to perform some work-related tasks to facilitate refuelling of farm equipment. I find that this evidence was of recent invention. I make this finding not only because I consider Mr Smith to have been an unimpressive witness, but also because:
   • The witness statement of Mr Smith dated 1 October 2024, that was filed in support of the referral to the Tribunal, and received into evidence in the hearing, was prepared on Mr Smith's behalf by his legal representatives, who would be expected to have explored with their client any matters surrounding the motor accident that would be relevant to the question of whether the accident was, or was not, related to Mr Smith's employment.
   • Mr Smith had the opportunity to put forward this fresh evidence by filing a witness statement in accordance with the Tribunal's direction prior to the hearing, but failed to do so.
   • This evidence had never previously been raised as part of Mr Smith's case, either against the Board or against the employer
4. I make additional findings of fact as follows:
   • On 12 January 2024, Mr Rice asked Mr Smith to leave his personal vehicle at Ansons Meadows, and to take the tractor back to Orana using the work truck for the purpose of feeding out cattle the following morning, and Mr Smith agreed to do so.
   • On that basis, Mr Rice directed Mr Smith to undertake that task as part of his employment duties.
   • Mr Rice did not, on 12 January 2024, tell Mr Smith to return the work truck to Ansons Meadows the following day, that is, Saturday 13 January 2024.
   • Mr Rice authorised Mr Smith to drive the work truck back to Ansons Meadows the following day if Mr Smith needed his personal vehicle over the weekend, otherwise Mr Rice directed Mr Smith to bring the work truck back to Ansons Meadows for work on the following Monday.
   • Once Mr Smith had fed out the cattle on Saturday 13 January 2024, there were no other work duties to which he was required to attend. He had ceased work for the day.
   • On Saturday 13 January 2024, after he had completed feeding out, Mr Smith drove the work truck to Ansons Meadows with the sole intention of collecting his personal vehicle from Ansons Meadows for the purpose of then driving to St Helens to attend to his personal affairs.
5. The Board refers to Mr Smith's evidence in his witness statement that residing at Orana was 'part of his employment' and submits that Mr Smith was accordingly either required by his employer to reside at Orana, or alternatively, he was practically required to do so by the nature of his employment. The particular issue was not explored in the hearing and I do not think the evidence goes so far as to establish a requirement for Mr Smith to live on the farm, particularly where the evidence is also that Mr Smith was paying rent to live at Orana, was living, by his estimation only fifteen minutes or so by car away from St Helens and Mr Smith's work days were usually only from Monday to Friday.

Section 25(1) of the WRC Act - 'out of or in the course of employment'

1. The phrase 'out of or in the course of employment' was discussed in detail by Blow CJ in Nazar v Hydro Electric Corporation [2022] TASFC 11 at [7] - [9]:

7. The distinction between an injury arising out of a worker's employment and one arising in the course of that worker's employment was addressed by Dixon CJ in Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547, in which his Honour said the following, at 556: > > "Repeatedly the contrast has been made between the effect of the words 'out of' and the effect of the words 'in the course of'. Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connexion between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition. I have seen nothing to suggest that within the expression 'in the course of the employment' there had been discovered any element of causal relation with the employment and its incidents. To prescribe that element was considered to be work of the words 'arising out of'. It was thus natural for this Court to say after the word 'or' had been substituted for 'and' in the Western Australian provision that the result of English authority was 'to show that the words "arising in the course of the employment" describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is more than an adjunct to or an incident of his service'." > > 8. In a number of cases the High Court made it clear that an injury occurs "in the course of" a worker's employment if it occurs when the worker is doing something that is incidental to the performance of his or her actual duties. One such case was Henderson v Commissioner of Railways (Western Australia) [1937] HCA 67; (1937) 58 CLR 281. That case concerned a railway ganger who was in charge of men erecting fences near a railway station. They were living in a camp near the station. The ganger was killed by a train during his lunch hour while crossing the railway line on his way to the camp. His duties required him to work and direct the work of his men between certain hours, and also to check the tools used, to keep time sheets, to attend to correspondence, and to issue railway concession passes. The High Court held, by majority, that the accident occurred in the course of his employment. Dixon J (as he then was) said the following at 293-294: > > "The reason given by the Full Court for the conclusion that the accident did not arise out of or in the course of the employment appears to me to depend upon the view that before the accident the deceased entirely left the sphere of his duty and, independently of his employment, was finding his way over part of his employer's premises to the place where for his own benefit he was allowed to camp. In my opinion such a view makes too marked a contrast between the deceased's actual work with the gang and his use of the facilities of the camp. It treats the employment as entirely restricted to working with and supervising the gang when at work and the camp as something no different from the workman's own dwelling or other place of residence. > > Cases of this description are never easy. The general principle governing the ascertainment of the "course of employment" appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. [His Honour's emphasis] > > ... > > Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances on which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer's premises and work as an ordinary member of the public is another matter of weight ...". (Case references omitted.) > > 9. Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 was another High Court case concerning a claim for worker's compensation in respect of an injury during a lunch break. In that case the worker was employed to visit shops in the Sydney metropolitan area for the purpose of servicing and repairing machines and implements supplied by his employer. He and a shop proprietor travelled some distance on a motorcycle in search of a hot fish lunch, and were returning at about 4pm when he was injured. The High Court unanimously held that the accident did not occur in the course of the worker's employment. The principal judgment was delivered by Dixon J (as he then was). His Honour said the following at 133: > > "The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties."

2. What has also been recognised (and is touched on in the passage from Humphrey Earl Ltd v Speechley referred to in Nazar above) is that the words 'in the course of employment' may encompass an injury suffered during an interval between an overall period of work. These 'interval' cases were more fully addressed by Blow CJ in Nazar, where his Honour referred to the principles set out in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 (Hatzimatolis) and Comcare v PVYW [2013] HCA 41, 250 CLR 245 (PVYW).
3. Ultimately, having reviewed the relevant principles, Blow CJ in Nazar at [14] observed:

...it is clear that an injury will occur in the course of a worker's employment if it occurs in one of the following situations:

• When the worker is performing his or her actual duties.
• When the worker is doing something that he or she is reasonably required, expected or authorised to do in order to carry out his or her actual duties.
• When, during an interval between periods of work, the worker is doing something induced or encouraged by the employer.
• When, during an interval between periods of work, the worker is at a place where the employer induced or encouraged him or her to be present, and is injured in circumstances that are the subject of the employer's inducement or encouragement.

1. The Board and the employer have both addressed the question of whether this ought to be considered to be an 'interval' case. They have both ultimately submitted that this is not an interval case, but for different reasons.
2. The Board's position is that this is not an interval case because Mr Smith was undertaking his actual employment duties at the time that he was injured in the motor accident.
3. The Board says the general nature and circumstances of Mr Smith's employment lead to a conclusion that although Mr Smith had completed his specifically assigned work duties on Saturday 13 January 2024, his 'work' for the day had not ended. These submissions are predicated on an assumption about certain findings of fact, because the Board says I ought to find that when Mr Smith sustained injury in the motor accident, he was travelling between Orana and Ansons Meadows in the course of his employment, with the intention of undertaking tasks associated with refuelling farm equipment.
4. The employer also says that this is not an interval case, because the working day for Mr Smith had come to an end at or about the time he finished feeding out the cattle at Orana, and when he was injured in the motor accident he was not undertaking any activity that was incidental to his work duties. The employer further says that, at the time of the motor accident, Mr Smith was not performing his actual work duties, not was he doing something that he was reasonably required to do to carry out his actual work duties.
5. The employer particularly refers to Vandyke v Fender [1970] 2 QB 292, cited with approval by the Supreme Court[1]:

...when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment - unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in the vehicle, or be permitted to travel in it. He must have an obligation to travel in it. Else he is not in the course of his employment.

6. 'Interval cases' usually fall to be considered where a worker is required by the employer to be present in a particular place between discrete periods of actual work - including remote 'fly-in, fly-out' workplaces, such as in Hatzimanolis; or for the purpose of attending a multi-day conference interstate, such as in Dring v Telstra Corporation [2021] FAFC 50; or where a worker must stay overnight away from home for work, such as in PVYW. This is not a comparable situation.
7. I agree that this is not an interval case. In the present instance, Mr Smith, at the time he was injured in the motor accident had finished work for the day. He was not required, induced or encouraged to be at a particular place in a period between two discrete periods of actual work.
8. In accordance with the four potential 'in the course of employment' scenarios outlined in Nazar, that leaves for consideration the questions of whether Mr Smith, at the time of the motor accident was either performing his actual duties, or was doing something that he was reasonably required, expected or authorised to do in order to carry out his actual work duties.
9. In the light of the findings of fact that I have made, Mr Smith was not, at the time of the motor accident performing his actual duties.
10. At the time he was travelling from Orana to Ansons Meadows, Mr Smith was travelling for his own reasons, which were to collect his car from Ansons Meadows, and from there to attend to his personal tasks in St Helens. He was not, at the time, doing anything that he was reasonably required, expected or authorised to do in order to carry out his actual duties.
11. I accept that Mr Smith received permission from Mr Rice to drive the work truck back to Ansons Meadows on Saturday 13 January 2024, but that permission was specifically given so Mr Smith could collect his personal vehicle for his own use, and not for any purposes related to his duties.
12. It follows that the injuries sustained by Mr Smith in the motor accident on 13 January 2024 were not suffered out of or in the course of Mr Smith's employment, and the employer has no liability to pay compensation to Mr Smith. I make that determination.
13. Because no compensation is payable by the employer in respect of the motor accident, the Board is liable to pay scheduled benefits to Mr Smith pursuant to s 23 of the MALC Act.

1. The time for Barry Smith to refer to the Tribunal the decision of the Motor Accidents Insurance Board dated 15 January 2024 to reject his claim for scheduled benefits is extended to 25 February 2025, pursuant to reg 4(4)(b) of the Motor Accidents (Liabilities and Compensation) (Tribunal) Regulations 2019.
2. The decision of the Motor Accidents Insurance Board dated 15 January 2024, that scheduled benefits are not payable to Mr Barry Smith in respect of the motor accident on 13 January 2024, is set aside.
3. The Motor Accidents Insurance Board is to pay the benefits prescribed by the Motor Accidents (Liabilities and Compensation) Regulations 2020 in respect of personal injury suffered by Mr Smith resulting directly from the motor accident on 13 January 2024.
4. If any ancillary orders are sought by any party, they are directed to file submissions identifying the orders sought, and submissions in support, within 35 days.

[1] See Cook v Buckingham [2012] TASSC 53 at [30] and Motor Accidents Insurance Board v Cook [2013] TASFC 4.