Thompson v Workcover Corporation/Vero Workers Compensation

3 The employer is a propriety limited company that at all relevant times was operated by Mr Jeffery Johnson and his wife Kim.

4 At all relevant times the employer had a contract with Bardrill Corporation Limited ("Bardrill") pursuant to which it provided Bardrill with water hallage and roadwork assistance.

5 Mr Johnson worked for the employer as a driver. He employed another employee to do similar work to enable him to have some time off. Mr Johnson would generally work four weeks on and two weeks off, such that the other employee would generally work two weeks on and four weeks off.

6 In early 2002, Mr Johnson had some issues with the driver he was then employing and he heard that the worker was looking for work. Having made contact by telephone, Mr Johnson visited the worker in Goolwa and informed him that the work involved driving a water truck to be used in the course of construction and maintenance of the road network in the Cooper Basin. He told the worker that he would be paid at the rate of $20 per hour for every hour that the truck has worked, that the employer would pay his travel expenses from Adelaide to Moomba or from Adelaide to Ballera, a small town in the south west of Queensland, depending on the work and therefore where the truck was located, that he was obliged to keep the employer's equipment and himself in a neat and presentable condition, that the worker would be located in remote areas within the Cooper Basin at or near where the water truck was needed, that he was permitted to drive the company's Toyota land cruiser to the nearest service depot once per week to get supplies and to wash his clothing, and that he was promptly to report any difficulties or problems with the employer's equipment.

7 This conversation took place on the 6 February 2002. At that time the water truck was stationed in the Moomba area of South Australia. The truck was involved in an accident on that very day and as a result there was some delay before the worker could commence work because the employer had to obtain a replacement truck.

8 The worker commenced employment for the employer 1 April 2002. He flew from Adelaide to Moomba where he underwent an induction conducted by Santos Ltd and received a security pass. He stayed that night at Moomba in the employer's depot. At that time the water truck was located at or near a camp known as the Baryulah Road camp ("the camp") which is midway between Ballera and another small town, Jackson, all of which are situated in Queensland. The camp comprised of various forms of temporary accommodation that included a converted trailer with fairly rudimentary facilities that was provided to the worker by the employer. The following day, the worker drove the employer's South Australian registered Toyota land cruiser utility ("the vehicle") from Moomba to the camp and met Mr Johnson on arrival. Mr Johnson spent about two hours explaining to the worker what was to be done and he then left, with the worker to commence working the water truck later that day.

9 The worker worked the water truck everyday until the 17 April 2002 at which time he drove the vehicle to Ballera, flew to Moomba and from there on to Adelaide.

10 The worker undertook another stint of work towards the end of May 2002.

11 On Friday 30 May 2002, after he had completed work for the day, the worker left the camp and drove to Jackson. There is some disagreement about this, but worker contends that he did so for the purpose of advising Mr Johnson that there was a problem with the truck.

12 On the following evening, Saturday 1 June 2002, at about 6.30 pm, the worker drove the vehicle from the camp to Jackson in the company of another person residing in the camp, Mr Colloe. He said that the purpose of this trip was to obtain supplies and wash his clothing. He said that he arrived at Jackson at about 7.15 pm purchased a carton of beer, some food and some other items. He said he did some laundry while he was there, had an evening meal and at about 10.00 pm left to return to the camp. About twenty five kilometres out of Jackson he was confronted by a cow on the road and when attempting to drive around it the left hand verge of the road gave away and the vehicle struck the concrete wing of a floodway causing the worker to sustain an injuries to his right knee, left shoulder and nose. The worker remained in the crashed vehicle until 5.30 am the following morning when he was discovered by Bardrill employees on their way to work. They took him to the camp from which he was later airlifted to Ballera.

13 The first issue to be determined is whether the disability arose from employment.

14 Since this disability is not a secondary disability or a disease, it will satisfy this requirement if it arose out of or in the course of employment: s 30(2)(a).

15 Mr Kernot, counsel for the worker, would have it that the worker's attendance at Jackson was in the discharge of his duties of employment. He submitted that the worker was required to go to Jackson to wash his clothes because he was obliged by the terms of the contract of employment to maintain appropriate levels of hygiene and cleanliness.

16 In my opinion it is drawing a long bow to conclude that an expectation that an employee would be clean and appropriately attired translates to a finding that activities directed to fulfilling that expectation should be regarded as duties of employment. That however is not the issue because as Barwick CJ noted in Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 at 536, "what is in the course of employment cannot be limited to what the employee is by the terms of his engagement express or implied contractually bound to do." As demonstrated by cases such as Park v Peach [1967] VicRp 60; [1967] VR 558 the concept extends to matters incidental to employment and in making that judgment a broad approach in tune with changing social and industrial conditions must be applied: Danvers (supra). Hence in Park v Peach the death of a taxi driver fatally injured when crossing a road to return to his cab having purchased a newspaper was held to be compensable, it having been found that purchasing the newspaper was incidental to employment.

17 This approach was expressly approved of by the High Court in Hatzimanolis v A and I Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 and as Mason CJ, Deane, Dawson and McHugh JJ noted at 482 such an approach when applied to an employee who is required to go to a remote location and live for a limited time in accommodation provided by his or her employer will generally lead to a conclusion that an injury sustained at that location after work will have occurred in the course of employment. As I explained in Paparella v Workcover GIO (Kangaroo Island Ferry's Pty Ltd) (1998 SAWCT 57) it does not mean that every activity undertaken by an employee at or about such a location will necessarily be found to be in the course of employment. See also: Foura v State of South Australia (1981) 48 S.A.I.R. 633. But it does mean that the remoteness of the location and the obligation to reside there are important factors and that in such circumstances, provided the activity, even if it is one that is primarily focussed towards attending to the employee's needs, is one that an employer might reasonably expected to have been undertaken and expressly or impliedly consented to, will invariably lead to a finding that the activity is in the course of employment.

18 It is reasonably to infer that the worker was contractually obliged to live in the accommodation that was provided by the employer and I so find. This was within a camp that was quite literally in the middle of nowhere. The remoteness of the location is evident by the fact that the worker and his companion remained unnoticed for several hours after the accident and upon retrieval the worker had to be airlifted out.

19 Just as Winneke CJ and Starke J in Park v Peach were of the opinion in 1967 that in that day and age, a taxi driver temporarily leaving his cab to purchase a newspaper "was exercising a privilege or making use of an amenity...[that]...may fairly be regarded as belonging to the employment in which ...[he]...was engaged." (supra) at 562, in my opinion, in this day and age, the same is true of the worker leaving the remote location at which he was obliged to reside to travel to and from a nearby town to purchase some beer and cigarettes and to wash his clothes. To put it another way, these were activities that the employer ought reasonably to have expected would be undertaken and to have expressly or impliedly consented to them.

20 In all the circumstances I am satisfied that the worker's injuries occurred in the course of his employment with the employer.

21 I now turn to consider that the second issue that I must resolve.

22 Even though the worker's accident occurred in Queensland there was much to connect it with South Australia. He was working for a South Australian company pursuant to a contract of employment that was entered into in South Australia, which is where he resided and where he left from and where he was to return following the completion of his shift. He was injured whilst driving a car that was registered in South Australia. On general principles a conclusion that the Act applied even though the accident occurred outside of the State might be thought to be unsurprising. However, it is settled law that s 6(2) of the Act provides complete code as to the meaning of nexus with South Australia_: Selamis v Workcover Corporation Allianz Workers Compensation (SA) Pty Ltd (GNT Georgoeolous Transport)_ JD 36 of 1997_, Workcover Corporation v Smith_ (1998) 72 SASR 239) and Tebbey v Workcover Corporation - HIH Workers Compensation (SA) Ltd (Irons Engineering Pty Lt) [2001] SAWCT 105 and that unless that nexus as defined by the Act exists, the injuries sustained by the worker are not compensable pursuant to the Act.

23 I note in passing that Parliament has not seen fit to amend the Act despite the obvious injustice that the provision can lead to as alluded to by Lander J in Smith.

24 Section 6 of the Act provides as follows:-

"(1) This Act applies to a worker's employment (either within or outside the State) if there is a nexus between the worker's employment and the State.

(2) A nexus exists between a worker's employment and a State if -

(a) the worker is usually employed in the State and not in any other State; or

(b) the worker is usually employed in 2 or more States but is based in the State.

(3) In addition, a nexus exists between a worker's employment and this State if -

(a) the worker is not usually employed in any State; but

(b) the worker is employed in the State or the worker's employment involves (or is likely to involve) recurrent trips to and from a base in the State, and the worker is not protected against employment-related disabilities by a corresponding law.

(b) a reference to employment is a reference to the worker's work (and not to an employment as an abstract legal relationship):

(c) a worker is usually employed in a particular state if 10% or more of the time the worker spends working in employment (or is to be) spent working in the State:

(d) a worker is based (or has a base) in a particular State if the worker's usual place of residence is in the State or if the worker regularly travels between a port or other point of embarkation in the State and the place of employment".

25 Mr Kernot contends that the worker can establish nexus on one or two bases. First, he contends that I will find that the worker was usually employed in South Australia and not in any other state so to meet the criteria required by s 6(2)(a).

26 In the alternative, he contends that I should find that the worker is based in South Australia and that he is usually employed in South Australia and in Queensland.

27 Ms Kelly, counsel for the Corporation, contends that the worker is unable to establish the necessary nexus. She contends that I should find that he is not usually employed in South Australia.

28 I now turn to consider the evidence on this topic.

29 Following the accident the worker lodged a claim seeking workers compensation benefits from WorkCover Queensland and in connection therewith he made a written statement. In it he said: "J&K Johnson is registered as a business in South Australia. But their work commitments and machinery are based in Queensland. J&K Johnson only contract with Bardrill who mainly work in Queensland."

30 WorkCover Queensland then contacted the employer. A note on its file records a telephone discussion with Mrs Johnson wherein she allegedly advised that 95 per cent of the employer's work was done at Moomba in South Australia.

31 This was put to Mr Johnson in cross-examination and he agreed that this is what his wife had said.

32 By letter dated 25 November 2002 Workcover Queensland advised the worker that his claim for compensation under Queensland Act was rejected. In particular it was asserted:-

"Your employer advised that the company is registered in South Australia and they have a workers' compensation policy with Workcover Corporation South Australia. They do not have a policy with Workcover Qld. They advised 95% of their work is done at Moomba in South Australia and limited time is spent at Ballera Qld. .... Your employer has confirmed their principal place of business is in South Australia and if you had remained in their employ your principal place of employment would have been at Moomba in South Australia. I am satisfied that your principal place of employment is South Australia. As a result, your application falls within Section 140(2) & (3) of WorkCover Queensland Act and you are not entitled to compensation."

33 In the statement that he filed in connection with these proceedings the worker said that when he agreed to work for the employer he understood that the employer's water truck was working in South Australia. In his oral evidence he accepted that he was not surprised to learn that following his accident neither Mr Johnson nor his replacement worked in South Australia until mid September 2002.

34 Mr Johnson said that because of the nature of the employer's business he did not know from one week to the next where he would be working. He said that this was up to Bardrill's supervisors.

35 The only work that the worker had undertaken in South Australia prior to accident comprised of the induction that he participated in at Moomba. For the balance of the time, his employment duties were carried out in Queensland.

36 Whilst the Act allows some consideration of the future as indicated by the reference in s 6(4) to "or is to be" this does not in my opinion enable a retrospective assessment of what would have eventuated had the worker not been injured. If the position were otherwise the fate of a claim might vary depending upon when ultimate determination was made. Albeit in a different context Doyle CJ alluded to similar difficulties in Pizzorno v Workers Rehabilitation and Compensation Corporation and Another [1997] SASC 6229; (1997) 69 SASR 211 at 214 - 5. Thus the fact that there was evidence that subsequent to the worker's accident the employer's truck eventually returned to South Australia and if the worker had continued in employment with the employer it is certain that he would have eventually worked for it for a least ten per cent of the time is not decisive.

37 In my opinion findings as to the percentages of work worked inside and outside of the State have to be made on the basis of the work that the worker was performing at the time of his injuries and what was expected in the immediate future.

38 As was the case in respect of the provision under consideration in Pizzorno it is not possible to identify precisely what time frame is involved. As the learned Chief Justice said there, each case will turn on its own facts.

39 In this case, the worker had only been working for the employer for a very short time. At the time of the occurrence of the worker's injuries he was working exclusively in Queensland. For the period prior to that he had worked all but one or two days in Queensland. Although he could have reasonably expected, if he in fact continued to work for the employer, that at some point of time in the future he would work in South Australia, neither he or the employer would have been able to say when that might be. Any attempt to fix a particular time when he would work for the employer in South Australia and any attempt to fix particular duration of that work would have been pure speculation. As evidenced by his statement in connection with his WorkCover Queensland claim his immediate expectations were that he would continue to work in Queensland.

40 In my opinion the evidence compels a finding that that when the worker injured himself he was not then employed to work in South Australia for at least ten per cent of the time and could not reasonably be expected in the immediate future to work in South Australia for at least ten per cent of the time. I therefore conclude that his claim under the Act must be rejected.

42 The worker sustained injuries in the course of his employment with the employer and yet his claim for compensation under the equivalent Queensland Act was rejected and his claim under the Act will now suffer the same fate.

43 It would appear that WorkCover Queensland relied at least in part upon information supplied by the employer that may not have been completely accurate, and given the fate of this matter that seems a little unfair. That said, because the Corporation had no part to play in the provision of that information no question of estoppel arises.

44 Despite the many connections with the worker's accident and South Australia, many of which were relied upon by WorkCover Queensland in rejecting the worker's claim, the inflexible limitations that Parliament has seen fit to impose leave the worker without a remedy.

45 Whilst the Act is in its present form and without uniformity in the extra-territorial provisions in comparable interstate legislation and complimentary provisions to ensure that injuries sustained by employees in the course of their employment in Australia are covered by a workers compensation scheme, it is inevitable that anomalous results such as this will occur.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.