HRNG ADELAIDE, 7 March 1996 #DATE 3:4:1996 #ADD 20:5:1996

Solicitors for respondent: Palios Meegan and Nicholson

JUDGE1 DOYLE CJ By section 100(3) of the Workers Rehabilitation and Compensation Act ("the Act") the appeal is limited to a question of law.

The question of law raised is the meaning and application of section 30(5) of the Act.

Amending Act No 49 of 1994 substituted a new section 30 in the Act. Subsections (1), (2), (3), (5), (6) and (7) provide as follows: "(1) Subject to this Act, a disability is compensable if it arises from employment.

(2) Subject to this section, a disability arises from employment if -

(a) in the case of a disability that is a secondary disability or a disease - it arises out of or in the course of employment; or (b) in the case of a disability that is a secondary disability or a disease - (i) the disability arises out of employment; or (ii) the disability arises in the course of employment and the employment contributed to the disability.

(3) A worker's employment includes - (a) attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and (b) attendance at the worker's place of employment during an authorised break from work; and (c) attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and (d) attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and (e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a

(5) A disability that arises out of, or in the course of, a journey arises from employment only if - (a) the journey is undertaken in the course of carrying out duties of employment; or (b) the journey is between

  (i) the worker's place of residence and place of
  employment;  or
  (ii) the worker's place of residence or place

of employment and - - an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or - a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability, and there is a real and substantial connection between the employment and the accident out of which the disability arises.

(6) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).

(7) The journey between places mentioned in subsection (5)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker."

To understand the significance of these provisions it is helpful to consider the relevant provisions of section 30 before it was amended. Subsections (1), (2), (3) and (5) provided as follows: "(1) Subject to this Act, a disability is compensable if it arises from employment.

(2) A disability arises from employment if - (a) in the case of a disability (not being a secondary disability or a disease) - it arises out of or in the course of employment; or (b) in the case of a disability that is a secondary disability or a disease -

(i) the disability arises out of employment; or (ii) the disability arises in the course of employment and the employment contributed to the disability.

(3) Subject to subsection (4), the employment of a worker includes - (a) a journey between the worker's residence and place of employment (whether to or from the place of employment); (b) attendance by the worker at the worker's place of employment on a working day - (i) before commencing work for the day; (ii) after concluding work for the day; or (iii) during any authorized break from work; (c) where the worker has attended at the place of employment on a working day - a temporary absence from the place of employment during a meal break or other authorized break from work; (d) attendance by the worker at an educational institution in accordance with a legal obligation or at the request or with the approval of the employer for the purpose of receiving instruction or training and any journey for the purpose of such an attendance at the institution between the worker's residence or place of employment and the

institution (whether the journey is to or from the institution); (e) attendance by the worker at any place (which may include the worker's place of employment) for the purpose of - (i) obtaining a medical report or certificate in connection with a compensable disability; (ii) receiving medal treatment for a compensable disability; (iii) participating in a rehabilitation programme provided to the worker; (iv) seeking or receiving compensation in connection with

a compensable disability, and any journey related to such an attendance between that place and the worker's residence or place of employment (whether the journey is to or from that place).

(5) A journey between a place of employment at which a worker is employed by one employer and a place of employment at which the worker is employed by another employer forms part of the employment of the worker by that other employer."

It is quite clear that the intention behind the new section 30 was to narrow the scope of what is a compensable disability. In particular, Parliament chose to take a more restrictive approach than had previously been taken to the well known concept of a journey injury. Under the previous section 30 a disability was compensable if, among other things, it arose in the course of a journey between the worker's residence and place of employment. A disability was also compensable if it arose in the course of a journey between the worker's residence or place of employment and a place which the worker was attending for purposes similar to those identified now in section 30(5)(b)(ii).

In the previous section 30 there was no provision requiring "a real and substantial connection between the employment and the accident out of which the disability arises" and no provision equivalent to subsections (6) and (7). Under the previous section 30 if a disability was suffered in the course of a relevant journey, that would suffice to make it compensable.

The amendment is to be approached on the basis that it was Parliament's intention to restrict the scope of the employment of a worker. To what extent that has been achieved is another matter.

The case before the Review Officer and before the Tribunal was decided upon a statement of agreed facts. They were brief indeed. They amounted to this. The employer had accepted a claim that the worker had sustained a compensable disability. The worker was travelling by bus from her place of employment to attend a medical appointment with a doctor. She sustained or claimed to have sustained an injury in the course of that journey. The doctor provided a medical certificate certifying the worker unfit from the day on which the journey took place, 15 July 1994, to 18 July 1994, but the certificate referred to an injury in 1993.

The Tribunal noted there was no information as to whether the worker had completed her shift when she set out on the journey. The Review Officer, however, seems to have proceeded on the basis that the journey took place during working hours. It was common ground that she was consulting the doctor in connection with the earlier compensable disability. But the purpose, to obtain treatment or a certificate of some kind, was not in evidence. Nor was there evidence establishing whether the appointment was at the behest of the employer or at the worker's initiative. It was not clear whether the worker was intending later to return to work.

The Review Officer made a determination in favour of the worker. The Review Officer was inclined to think that the disability arose in the course of employment for the purposes of subsection (2) because it occurred during the working day, was related to a compensable disability and was for the purpose of an attendance for which the employer was probably obliged to pay. The Review Officer said that the attendance was one that was authorised, required or encouraged by the employer. But, without finally deciding that, the Review Officer found that the case fell within section 30(5)(b)(ii) because there was a real and substantial connection between the employment and the accident. It appears that the Review Officer found this connection from the fact that the journey was for the purpose of attending a doctor treating the worker for a compensable disability, the fact that the journey took place during working hours and the fact that presumably the medical attendance was at the employer's expense.

The Tribunal did not agree with the Review Officer's reasoning. It held that the Review Officer was wrong in thinking that there was no real difference between a connection with the employment and a connection with the accident: see the final part of s30(5)(a). I agree with the Tribunal. There is a distinction. Just how significant it will prove in practice remains to be seen, but it must be observed.

The Tribunal went on to conclude that the journey undertaken by the worker was undertaken in the course of carrying out her duties of employment. The Tribunal remarked that subparagraphs (a) and (b) of subsection (5) were not mutually exclusive and that the one case might fall under both subparagraphs. That may well be so. But the Tribunal went on to refer to certain duties of employers under the Occupational Health, Safety and Welfare Act 1986 and under the Act. As to the former Act, it referred to a duty to monitor the health and welfare of employees, a duty to keep information and records relating to work-related injuries and certain other related duties: see sections 19, 21 and 23. As to the latter Act, it referred to section 29 (injury prevention programmes) and section 42B (power to require medical examination). From these provisions it concluded that an employer was under a duty to monitor the health and welfare of employees and to keep information and records relating to those matters. It also concluded that under the Act, in particular, there is an obligation on the employer to ascertain the state of a worker's health and an obligation on the worker to present that information about his or her state of health, usually as a condition precedent to obtaining benefits under the Act. The Tribunal seems to have reasoned that because the journey was either to receive treatment in connection with a compensable disability, or to obtain a certificate relating to such a disability, it was for the purpose of either employer or worker meeting one of those statutory obligations, and accordingly could be regarded as the carrying out of the duties of employment.

On the very sparse agreed facts, it is not easy to say just what the purpose of the journey was, but it is not for this Court to interfere with findings of fact.

To express my views on this case it is necessary to set those views in the context of the development of the statutory approach to the concept of a disability arising in the course of employment. The original statutory concept was "the course of the employment" which now finds expression in section 30(2)(a). That was not a narrow concept. It is convenient to refer to what Barwick CJ said in Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 at 536: "It has become apparent in Australia that what is in the course of an employment cannot be limited to what the

employee is by the terms of his engagement express or implied contractually bound to do. The strict views expressed in such a case as Philbin v Hayes (1918) 87 LJKB 779, are no longer valid, in my opinion, for the solution of such a problem in Australia as is posed in this case. The course of an employment, to use the language of Dixon J in Henderson v Commissioner of Railways (WA) (1937) 59 CLR 281, at pp298, 294, includes the doing of 'whatever is incidental to the performance of the work' and will include what he 'is reasonably required, expected or authorized to do in order to carry out his actual duties'. Thus it may include being

at a place at which the workman's presence 'is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment'. In applying such a statement to the facts and circumstances of a particular case, its elements, in my opinion, should be applied liberally and practically."

It should also be borne in mind, as was said in Park v Paech [1967] VicRp 60; (1967) VR 558 at 560, that decisions about the expression: "... have been many, and as they have been given against the background of changing social and industrial conditions over the years, the interpretation placed upon them has shown a tendency to broaden."

The many cases which deal with the statutory expression illustrate the difficulty of drawing precise lines. In due course Parliament intervened to clarify the position. In South Australia, so far as my researches have gone, the process of intervention appears to have begun in 1953 when Parliament enacted specific provisions relating to journeys for the first time. By the time of the enactment of the Act that process had developed to the state disclosed by subsection (3) in particular as it was before the section was amended. The terms of subsection (3) as it was are set out above.

The essential features of that provision were that attendance at certain places was treated as part of the employment of the worker, and accordingly an injury at one of those places would arise in the course of employment. In addition provision was made to the effect that certain journeys were treated as part of the employment, and again the effect of that was that an injury in the course of such a journey would arise in the course of employment. These provisions reflected the fact that there had been uncertainty as to the application of the fundamental concept to these situations. Clearly, subsection (3) was intended to be a statutory extension of the concept "course of employment". The position was that a journey might, depending upon the circumstances, be in the course of employment for the purposes of section 30(2)(a) or, if not, might still fall within section 30(3).

It is clear that Parliament has now taken a step back, although it has not completely changed course. Section 30(3) of the Act as it now is leaves pretty much as they were the provisions relating to attendance at the specified places. Such attendances continue to be part of the worker's employment and so an injury suffered while the worker is at one of those places arises from employment.

Parliament has now chosen to make separate and varied provision in relation to journeys, and those provisions are found in subsections (5), (6) and (7). I have already commented on the obviously more restrictive features of the new provisions.

At the outset it is necessary to consider the relationship between subsection (2) and subsection (5). I incline to the view that subsection (5) is now to be treated as an exception to subsection (2), and to the view that subsection (5) deals exclusively with journeys. I say this for two reasons. First, it is not easy to read subsection (5)(a) as wider in its reach than subsection (2)(a). "Duties of employment" seems to be, if anything, a narrower expression than "in the course of employment". It is not easy to see why Parliament would have added a narrower alternative to subsection (2)(a). Secondly, it should be noted that subsection (2) now, and for the first time, begins with the words "subject to this section". The obvious explanation for the introduction of those words is that subsection (5) is a qualification on subsection (2), and that if a journey is involved one must turn to subsection (5).

This is an important question. I do not now decide the matter because, in my opinion, it is not necessary to decide it. It is not necessary to decide it because on the facts of this particular case it is my opinion that there is no difference between the reach of the two concepts. For reasons which I will explain later I do not consider that, when the worker was injured, the worker was in the course of carrying out duties of employment. For the same reasons I would hold that in this case the journey was not undertaken in the course of employment and so the injury did not arise in the course of employment. But there might be cases in which a given set of facts was seen to fall within subsection (2)(a) but not within subsection (5)(a), and when that occurs it will be necessary to decide upon the relationship between the two.

I turn now to the question whether it can be said in the present case that the journey was undertaken by the worker in the course of carrying out duties of her employment. I think that the approach to be taken is broadly similar to that outlined by Barwick CJ in Danvers v Commissioner for Railways (NSW) (supra). The test is to be applied in a liberal and practical manner. The inquiry is not restricted to those things which a worker is literally or specifically required to do. The concept of duties of employment in my opinion extends beyond things which the employee is obliged to do. I also consider that one is entitled to and obliged to take into account contemporary conditions and contemporary understandings of the concept of duties of employment. I consider that the following remarks of Dixon J in Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29 are apposite: "... As the test is not, and could not be, whether the employee was obliged to act as he was doing when the accident occurred, the inclusion of things arising out of the actual performance of his duty was, no doubt, inevitable, but, as a result, the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment."

Having said all that it seems to me that the focus of the expression "duties of employment" as a matter of ordinary language is a reference to the carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do. This is by no means a precise test, and has to be applied in a common sense and practical manner. But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker's job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things. It is also necessary to view the journey in context. By that I mean one should not look at the journey in isolation but should consider what preceded it and what was going to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in context.

As a matter of ordinary language it seems to me that a journey undertaken to obtain treatment for a compensable disability or to obtain a certificate in connection with such a disability would not be regarded as a carrying out of duties of employment. These days everyone understands the intimate connection between worker's compensation and employment, and it is stating the obvious to say that the disability in connection with which the journey was made had arisen in the course of or out of the worker's employment. But to my mind one would not ordinarily say, despite that, that the journey was undertaken in the course of carrying out duties of employment. It was unrelated to the performance of those tasks which the worker, a cleaner, was employed to do. I can see no direct or incidental relationship between the journey and that work. I therefore start from the position that taking the words as they stand, and guided in my approach to them by the authorities, the journey in this case does not fall within the provisions of section 30(5)(a).

I do not find persuasive the reasoning of the Tribunal. I have considered the provisions of the Occupational Health, Safety and Welfare Act 1986 relied upon by the Tribunal. Sections 19 and 23 of that Act impose duties on employers in relation to safety at the workplace. There is also a duty imposed upon employers to monitor the health and welfare of employees and to keep information and records relating to injuries. Section 21 imposes a duty upon an employee to take reasonable care to protect his own health and safety at work. But in my opinion it cannot be said that in undertaking the relevant journey the worker was discharging any obligation imposed upon her by that Act. Nor do I consider that the journey can reasonably be related to a discharge of the employer's obligations under that Act, even if the discharge of the employer's obligations could be regarded as a duty of employment.

There is also the difficulty that the duties under that Act are statutory duties. In my opinion the statutory duties are not to be regarded as "duties of employment" for the purposes of section 30(5)(a). I consider that that expression is referable to matters not necessarily contractual, but at least matters usually controlled by the contract of employment. I mention in passing that the decision of the High Court in Byrne v Australian Airlines Limited (1995) 69 ALJR 797 emphasises the need to distinguish between statutory rights and obligations and contractual rights and obligations. Much the same comment may be made in relation to the Tribunal's reliance upon obligations on the employer and the worker under the Act. These also are statutory obligations. I do not consider that it can be said that compliance with obligations under the Worker's Compensation Act is the performance of duties of employment, even though those obligations are imposed in the context of employment. Counsel for the worker contested this approach and argued that the duties and the obligations under the Act were to be regarded as duties of employment. He pointed in particular to the fact that under section 36 of the Act weekly payments could be discontinued if the worker breached the obligation of mutuality. He made the point that mutuality was a concept which had its roots in contractual notions. That may be so, but in my opinion it is a confusion of concepts to treat statutory rights and obligations as between worker and employer as, of themselves, duties of employment. That is not to say that a statutory obligation might not overlap with a duty of employment. But there is no such overlap in the present case. Nor do I consider that the undertaking of a journey which might be regarded as the discharge of an obligation upon the worker under the Act, because the worker was in receipt of compensation is for that reason the performance of a duty of employment.

For those reasons I do not accept the reasoning of the Tribunal and do not accept the submissions made by counsel for the worker.

There was an alternative submission. The argument was that, in the present case, the worker was undertaking a journey between her place of employment and a place specified by section 30(3)(e). Accordingly, it was argued, the worker was in the course of a journey from one place of employment to another place of employment. It was said that this was analogous to the journey of travelling salesman or district nurse when travelling from one location to another to conduct the duties of employment. In my opinion the analogy fails. A travelling salesman or a district nurse is employed to travel from place to place. And so the journey itself is, clearly, in the course of the employment. A journey from one place of employment to another place of employment is not, simply because of its commencement and terminating points, a journey in the course of employment. There is the further difficulty that if the worker's submission is correct then there is no reason at all for Parliament, in section 30(5)(b) to deal with journeys from a place of employment to the places specified in subparagraph (ii). On the argument advanced such journeys, in any event, necessarily fall within subparagraph (a). The argument also overlooks the fact that under subsection (3), as it was before section 30 was amended, separate provision was made for a journey from a place of employment to the places specified, and on the argument advanced that also would be unnecessary because on the argument advanced a journey from the ordinary place of employment to one of the specified (and deemed) places of employment would always be a journey in the course of employment. For those reasons I reject that submission.

For the same reasons, as indicated earlier in this judgment, I would reject an argument that the journey can be said to be in the course of employment, even if section 30(2)(a) is available in the present case. Even on the assumption, which I am prepared to make, that section 30(2)(a) sets a somewhat wider and looser test, I do not consider that it is satisfied here.

It follows that, in my opinion, on the facts before the Tribunal, the Tribunal erred in law in concluding that the journey was undertaken in the course of carrying out duties of employment.

The Tribunal also considered the application of section 30(5)(b)(ii). It concluded that in the present case there was not a real and substantial connection between the employment and the accident out of which the disability arises. In my opinion that conclusion was correct. The only connection between the employment and the accident was the fact that the worker was making a journey from her place of employment to the rooms of a doctor for the purpose of receiving treatment or obtaining a certificate in relation to a compensable disability. Those facts do no more than state the requirements of section 30(5)(b)(ii). In my opinion those bare facts cannot constitute a real and substantial connection as required by the section, whatever that may mean. The meaning of that expression will, no doubt, confront the Court in a later case.

Counsel for the worker further argued that the fact that when the accident occurred the worker was travelling on a bus operated by the appellant constituted the necessary real and substantial connection. I do not accept that submission. The worker was travelling on the bus, along with other members of the public. It may well be that she travelled free of charge. But it was her choice to travel in that manner and the fact that the bus on which she travelled was operated by her employer is, to my mind, not something which provides any connection at all between her employment and the accident.

It follows that, in my opinion, the Tribunal erred in law. The appeal should be allowed. On the facts before the Tribunal there was no basis in law for a finding that the disability arose from employment because there was no basis in law for a finding that the disability arose in the course of employment. The original determination of the Corporation that the claim be rejected was correct, although reached on an incorrect basis.

In my opinion the orders of the Court should be as follows: (1) The appeal should be allowed.

(2) The decision of the Tribunal, setting aside the determination of the Review Officer and determining that the worker is entitled to compensation, should be set aside.

(3) For that decision should be substituted a decision allowing the appeal by the Corporation to the Tribunal, setting aside the determination of the Review Officer and in substitution for that determination, substituting a determination that the worker did not suffer a compensable

disability on 15 July 1994 and accordingly is not entitled to the payment of compensation.