T G T Transport v Zammit [2000] VSCA 162

T G T Transport v Zammit [2000] VSCA 162 - VSCA 2000 case summary — Zoe

[27]

"However, on the evidence I consider the probability is that the deceased's truck was unloaded on the Monday morning and then taken to the Shell Roadhouse. Even if the deceased had unloaded and taken the truck to the Shell Roadhouse at Rocklea on the Sunday night, it is clear from the conditions of employment that he was required to sleep in the truck and to be there when [Tony] arrived in order to receive instructions as to what he was next to do. [Defence counsel] submitted that Monday 14 April 1997 was not a working day for the deceased. There was nothing for him to do and he was not required for work until Tuesday. Therefore, the plaintiff fails, he said, at the threshold of s.83, as the deeming provision only applies where the plaintiff has attended at his place of employment on a working day and the injury sustained. I reject this argument as, in my opinion, he was required to be at the Shell Roadhouse to await instructions from his employer. Therefore Monday 14 April 1996 (sic) was a working day for the deceased under his terms of employment. [The Plaintiff's counsel] contends that the deceased's absence from the Shell Roadhouse, that is from his place of employment, and his attendance at Beaudesert was during an authorized recess. According to the evidence of [Tony], once a driver had unloaded his truck and taken it to the Shell Roadhouse at Rocklea, the driver was free to do anything he chose. In other words, the driver was authorized to absent himself from his place of employment, that is the Shell Roadhouse. Accordingly, the deceased's presence at Beaudesert was during an authorized recess and, furthermore, [Tony] knew that the deceased was so absenting himself from the Shell Roadhouse and permitted him to do so without objection. Indeed the deceased remained in the presence of [Tony] throughout. The only fair inference from these facts is that the deceased's absence from the Shell Roadhouse was one which at the very least was implicitly authorized by [Tony]."

[43]

The sub-section, in substantially the same form, became s.8(2)(a) of the Workers' Compensation Act 1958 and, later still, s.83(2)(a) of the Accident Compensation Act 1985 (Act No.1091 of 1985). There can be little doubt that it was introduced into the compensation law of this State to relax what had been perceived to be the rigorous interpretation given to the words "arising out of or in the course of the employment". Before 1946, in the State of Victoria, a worker was only entitled to compensation if the injury had both "arisen out of and in the course of the employment". The 1946 amendments changed this to "arising out of or in the course of the employment". The test was thus changed to a non-cumulative one. Even so, the courts had required, before the injury could be said to have arisen in the course of employment, a "sufficient degree of connection" between the circumstances in which the injury occurred and the actual performance of the worker's duty. Even where the worker had suffered injury during a lunch-time break and was upon the premises of his employer, the degree of connection with actual performance of duty might be regarded as insufficient to constitute the injury as one arising "in the course of the employment".[5] Particular difficulties were encountered in determining whether the course of employment was still subsisting when the worker had left his place of employment during temporary recesses - whether customary or authorized.[6] It was clearly to meet such problems that the Victorian Parliament, conscious no doubt of the remedial nature of the legislation, introduced the provisions extending the meaning of the words "arising out of or in the course of the employment" to encompass, inter alia, circumstances in which the worker had, on a working day, attended at his place of employment and was either present there when injured or was injured when temporarily absent during an ordinary recess, without having subjected himself to any abnormal risk.[7]

[56]

Notwithstanding that in the current Act which his Honour had to apply, the adjective "authorized" has been substituted for the adjective "ordinary" before the word "recess", I am for my own part of the view that, on the facts which his Honour found, it was not open to him to conclude, on the proper interpretation of s.83(1)(a), that the deceased had suffered his injury on a working day on which he had been present at his place of employment when he was temporarily absent during a recess, even if that absence was authorized. It was, I think, open to his Honour to conclude that Monday 14 April 1997 was a "working day" in the sense that he had unloaded his truck on that morning and had driven the truck, empty, to the Shell Roadhouse at Rocklea. These were activities which he was required to engage in as part of his service to his employer. Having regard to the nature of his contract of employment, and the extended definition given by the Act to "the place of employment", it was also open in my view for his Honour to find that, whilst he was in the truck and the Roadhouse, he was present at his place of employment on that working day. However, once he had left the Roadhouse, and his truck, to travel with Tony and Biermaler to Rathdownie, it could not sensibly be concluded that, on the proper interpretation of s.83(1)(a), he was "temporarily absent on that day during [an] authorized recess". On no view, on the facts found, was he injured during "a relatively brief interruption in an otherwise continuous period of work" on that day. On the best view for him of the facts found, he had ceased the service which he was employed to perform at some stage early in the afternoon and had departed with Tony and Biermaler upon an enterprise which was unrelated to his contract of employment and which, on any view, was of some hours duration. Not only, as I see it, do the facts fail to support the conclusion that the deceased was temporarily absent from his work during a recess, but they also fail to support the conclusion that the interruption was within "an otherwise continuous period of work". It seems to me that the actual work which he was employed to do had ceased when he left the Roadhouse and, upon the facts found, it was not probable that there would be any further actual work to do on that day. He was off-duty, and his time was his own until he was notified by his employer that there was a cargo to be loaded, something which, as his Honour found, was unlikely on that day. It is one thing to say that, whenever he returned to his truck, he may have resumed the course of his employment; it is quite another thing to say that he was returning, on that day, to resume a continuous period of working activity.

[59]

For my own part, I cannot accept that submission. If that had been intended it would have been simple for the legislature to introduce the term "authorized absence" in place of, or as an alternative to, "ordinary recess" (cf. s.11 of the Workers' Compensation Act 1987 (NSW). But, whether the term "ordinary" or "authorized" is used, its meaning is necessarily confined by the words "being temporarily absent on that day from the place of employment during a recess". So long as s.83(1)(a) is so confined, it does not seem to me that the range of circumstances in which injuries will be deemed to arise out of or in the course of employment whilst the worker, on a working day, is temporarily absent from his place of employment on that day during a recess, can be much broadened, whether the recess is described as an "ordinary" one or an "authorized" one. As I see it, the words to which I have referred import the elements of brevity, periodicity and suspension of activity which are the defining qualities of a "recess" rather than the description of it as "ordinary" or "authorized". There is nothing in the parliamentary debates introducing the 1992 amendments which suggests that the Parliament intended to broaden the scope of the operation of the sub-section. Indeed, it is clear from those debates that the amendments were introduced to narrow the scope of compensable injuries and to cut the cost of the administration of the scheme previously known as "Workcare". It was said by the Minister introducing the amendments that the reforms were "urgently needed ... to arrest the financial haemorrhaging of the Workcare scheme in this State".[22] Against this background, it seems to me that it can be argued that the legislature intended to narrow the range of interruptions of working activity which would ordinarily be described as "recesses" to those which in fact had been authorized by the employer, whether expressly or by implication. Such a construction seems to me to be supported by the reasons given by the Minister for the removal from the scope of "s.83 injuries" those suffered by the worker whilst travelling to and from work. He said[23]:

[69]

As I have said, at the trial the appellant and the respondent took extreme and opposing stances about the interpretation of s.82, in cases where s.83 deemed an injury to arise out of or in the course of employment. The appellant contended that entitlement to compensation required the worker to overcome a "double hurdle" - first to prove that the injury "arose out of or in the course of employment"; secondly to demonstrate that the employment had been a significant contributing factor to the injury. This was so, the appellant submitted, whether the injury actually arose out of or in the course of employment or whether, pursuant to s.83 it was deemed to do so. The amending words, so the appellant contended, should be given the full effect which the legislature intended them to have.[24] On the other hand, the respondent submitted that, in circumstances where the court had found, pursuant to s.83, that the injury was deemed to have arisen out of or in the course of the worker's employment, it could not have been intended that the worker should have to demonstrate that the employment was a "significant contributing factor" to the injury because s.83 envisaged circumstances where the injury did not actually arise out of or in the course of employment. It was put that, although the circumstances predicated by s.83(1)(b) and (c) might demonstrate a causal connection between the employment and the injury, those predicated by s.83(1)(a) and (d) could rarely, if ever, demonstrate such a connection. Thus sub-paragraph (d) deemed an injury to arise out of or in the course of employment if the worker suffered injury whilst he or she was "in attendance at any place for the purpose of obtaining a medical certificate"; or at a place "receiving medical, surgical or hospital advice, attention or treatment"; or "receiving a personal and household service or an occupational rehabilitation service"; or "receiving a payment of compensation in connection with any injury for which the worker was entitled to receive compensation"; or "for the purpose of submitting to a medical examination required by or under this Act". It was the respondent's submission that, in each of those circumstances, it would be impossible to prove that the worker's employment significantly contributed to an accidental injury occurring at the places referred to and that the purpose and effect of s.83 would be rendered nugatory. In this regard, the respondent pointed to the lack of congruity between the amendments made to the definition of "injury" and the apparent sphere of operation, after amendment, of s.82. Whereas the amendments to "injury" suggested that the only injuries in respect of which the worker had to demonstrate a strong causal connection between employment and injury were "disease" based injuries and "recurrence, aggravation, etc." injuries, but not "injuries simpliciter", the entitlement provisions of s.82 operated in a reverse fashion because it was only in respect of "injuries simpliciter" that the strong causal connection had to be shown. The "significant contributing factor" criterion in s.82 was redundant to the operation of the section with regard to "disease based" injuries and "recurrence etc. injuries" because they would only qualify as compensable injuries if the employment could be demonstrated to have been a significant contributing factor to them. In the face of these incongruities, it was submitted on the respondent's behalf that, in the case of "s.83 injuries", the court should find the strong causal connection, required by s.82, simply because they were "deemed to arise out of" the employment.

[72]

In Popovski, Ashley, J. was concerned with whether employment had been "a significant contributing factor" to injury. Relying upon what was said by Mason, J. in Favelle Mort, his Honour suggested that it was, whenever injury "arose out of" employment. But in Favelle Mort, Mason, J. suggested only that, when injury arose out of employment, employment was necessarily "a contributing factor" and what was said there by no means applies equally when the question is whether the employment is "a significant contributing factor". Be that as it may, it became apparent during the course of the appeal that problems arose whether one accepted the construction of s.82(1) and (2) proposed by the appellant or the one proposed by the respondent. The appellant's construction would, as the learned judge pointed out, render incompensable many of the injuries contemplated by s.83. But, equally, there are problems created by the acceptance of the respondent's proposed construction. Quite apart from the fact that one cannot know whether the injury is deemed to have arisen "out of" or "in the course of" the employment, it seems to me to be a strange result that the worker has to demonstrate "the strong causal connection" between employment and injury where the injury is found to have actually arisen out of or in the course of the employment, but is relieved of the burden of doing so where the injury is deemed to have so arisen. It was in these circumstances that both counsel embraced the suggestion made by the Court that the fiction created by the deeming provisions of s.83 comprehends that the activities being carried out by the worker, when he or she suffers the injury, are being carried out as part of the employment. If such a construction were to be accepted, then the amendments to the entitlement provisions in s.82 would be left with some work to do because, although in most of the circumstances contemplated by s.83, injuries suffered by external accident would have a strong connection with the deceased's employment, those arising from underlying causes, such as aneurysm or heart attack etc., would still have to be shown to have such a connection with the deemed employment. Although it might be said, on the one hand, that this construction perpetuates the discongruity between the s.5 definition of "injury" and the terms of s.82, to which I have already referred, on the other hand it seems to me to better promote the legislative intention, evinced by the amendments to the definition of "injury", that it is only injuries emanating from underlying causes which should have to be shown to have a strong causal connection with the worker's employment. Notwithstanding the perceived difficulties, counsel for the appellant advised the Court, after receipt of instructions, that this construction of ss.82 and 83 was one acceptable to his clients. Although such a construction is different from the one adopted by the learned judge, it was agreed that it would produce the same conclusion as the one to which he came.

[140]

"This was said to be the effect of decisions such as Flanagan v. Great Northern Wool Dumping & Stevedoring Co. Pty. Ltd. (1949) 49 S.R.(N.S.W.) 340, where a worker who had left his employer's premises during the period of 1 hour allowed for the evening meal was held to be outside the course of his employment. It was argued that since the amendment was introduced to provide compensation for an employee who was away from the employer's premises and was therefore necessarily outside the course of his employment, the section on its proper construction cannot apply to persons who are still within the course of their employment. This would be the position with maids who were subject to recall and accordingly they could not satisfy the requirements of s.7(1)(e). However, a necessary premise in this argument does not correctly state the law. It is quite clear from the reasoning in Flanagan v. Great Northern Wool Company supra, at 342, and Humphrey Earl Ltd. v. Speechley [1951] HCA 75; (1951) 84 C.L.R. 126 at 134, that a worker who leaves the premises of his employer during a lunch interval is not necessarily outside the course of his employment. Depending upon the means he adopts for obtaining his lunch, this activity may still be incidental to his employment and for that reason within the course of it. The premise upon which the argument rests is also unsound when considered from a more general standpoint. There is nothing in the Act which requires the various kinds of entitlement to compensation to be placed in watertight and mutually exclusive compartments and forbids any construction which provides for a common area between their respective spheres of operation. It has, for example, been held that the circumstances of the worker's injury may properly fall within s.7(1)(e) notwithstanding that they also fall within the journeying provisions of s.7(1)(b): Havard v. Illawarra Meat Co. Ltd. (1956) 73 W.N.(N.S.W.) 334. It follows that a period of rest which would otherwise fall within the statutory definition of ordinary recess does not fail to do so because the employee during its duration can be said also to be in the course of his employment."

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