Transport Accident Commission v Dello Russo [2000] VSC 275

5. On 18 November 1998, QBE Workers Compensation (Victoria) Limited accepted in writing the respondent's claim for compensation under the AC Act and commenced making payments under that Act. On 12 January 1999 the Transport Accident Commission (the TAC) advised the respondent that it had formed the view that the injury arose out of or in the course of his employment and that his employment was a significant contributing factor and suggested that he pursue his claim with the appropriate WorkCover agent or with his employer. It advised the respondent that its decision was reviewable by the Victorian Civil and Administrative Tribunal (the Tribunal).

8. On about 21 May 1999, the respondent filed an application with the Tribunal for a review of the decision made by the TAC pursuant to s 48 of the Victorian Civil and Administrative Tribunal Act 1998. By letter dated 31 May 1999 the TAC advised the solicitors for the respondent that it had, pursuant to s 78(1) of the TA Act, reviewed the decision in contention and found that the decision was correct on the basis of the information in its possession. It confirmed that the WorkCover agent QBE had accepted liability for the respondent's claim and had made payments totalling $37,000.

11. The respondent proceeded with his application before the Tribunal for review of the decision of the TAC. On the 27th October 1999, the Tribunal found in his favour. It set aside the decision of the TAC and remitted the application to the TAC for payment of compensation to the applicant. The TAC appeals from the decision of the Tribunal to this Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998.

15. In its reasons the Tribunal stated that there was no dispute as to the facts giving rise to the application. It referred to the statement filed by the TAC with the Tribunal. It referred to the facts as stated by the TAC as follows:

"1. The applicant, Mr David Dello-Russo was involved in a motor vehicle accident on 29 October 1998 when he was struck by a motor vehicle driven by Spiros Karvanis a fellow worker in the car park of the mutual employer Holden Limited at their premises of 241 Salmon Street Port Melbourne. 2. David Dello-Russo had completed his shift at 7.30 am and was about to leave the employers premises in his own car when he was struck by a motor vehicle driven by Spiros Karvanis. The applicant was standing by his car which was parked within the car park when the accident occurred. "

19. Mr Dello-Russo lodged a statement with his application to the Tribunal. He stated as follows:

"I parked in the lower western parking bays in the car park as it made it easier for me to leave the car park and avoid traffic congestion at change of shifts. I had already clocked off work and was on my own time. I left the engine running and was standing outside my car. My next memory is waking up in Alfred Hospital some days later."

The Tribunal published substantial reasons. Its conclusions were stated in the following paragraphs:

"16. In this application the Applicant Mr Dello-Russo had completed his work for the day and it cannot therefore be said the injury arose out of or in the course of his employment and, as in the decisions of their Honours Justice Ashley and Judge Strong [Tatjana Popovski v Ericsson Australia Pty Ltd, [1] and Emmanual Pandazis v Champton Pty Ltd[2] respectively], I am of the view that Mr Dello-Russo's employment was not a significant contributing factor. This requirement is absent and it follows, therefore, that he is not entitled to compensation under Section 82 of the AC Act. 17. I do not accept the argument put forward by Mr Coish on behalf of the respondent that the fact that the applicant applied for compensation under the AC Act and that liability was accepted by his employer and the relevant insurer demonstrates that he was entitled to compensation under the AC Act. I consider the employer and insurer made those payments in error. 18. In its letter of 12 January 1999 addressed to the applicant's solicitor the respondent stated: - 'The Commission has formed the view that the injury arises out of or in the course of Mr Dello-Russo's employment and his employment was a significant contributing factor . . . ' However, for the reasons set out above the Tribunal concludes that this statement is incorrect in fact and in law notwithstanding that the Applicant has applied for and been paid compensation under the AC Act. As stated above he is not properly so entitled. 19. In the circumstances the Tribunal is of the view that the applicant is entitled to compensation under the provisions of the TA Act and will therefore make an order to that effect and require the application to be remitted to the respondent for payment of the compensation to which the Applicant is entitled."

26. The TAC has relied on the provisions of s 38A of the TA Act. It provides as follows:

"38A. Commission not liable where compensation payable under Accident Compensation Act 1985. The Commission is not liable to pay compensation in respect of a person who, on or after the commencement of Section 67 of the Accident Compensation (WorkCover) Act 1992, is injured or dies as a result of a transport accident to a person who is, or appears to the Commission to be, entitled to compensation in respect of that injury or death under the Accident Compensation Act 1985."

The entitlement to compensation under the AC Act turns, for the purpose of these proceedings, on the provisions of s 82(1) of that Act. It provides as follows:

"82. Entitlement to Compensation (1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act."

33. The Notice of Appeal filed in this Court listed some seven questions of law for determination. I do not propose to set out all the questions and grounds as stated in the Notice of Appeal but will focus upon the key issues raised by the appellant which directly or indirectly are covered by the questions of law set out in the Notice of Appeal. The following major issues were raised:

1. Whether the Tribunal was compelled to find an entitlement to compensation within the terms of s 38A of the Transport Accident Act when an injured worker makes a claim for compensation under the Accident Compensation Act, that claim is accepted in writing and compensation is paid under that Act and is being paid at the time the Tribunal considers the matter. (questions 1, 1a and 2).

2. Whether the Tribunal erred in its application of the law relating to what constituted "employment" as that term is used in the Accident Compensation Act and as a result erred both in its conclusion that the injury did not arise out of or in the course of the respondent's employment and that that employment was not a significant contributing factor. (Question 3 and 4 and 5)

Whether the Tribunal was compelled to find that there was an entitlement to compensation within the meaning of Section 38A because of the acceptance of the claim made and payment made under the Accident Compensation Act

39. The appellant submitted that an entitlement to compensation is established within the meaning of s 38A of the TA Act in circumstances where an injured worker makes a claim under the AC Act for compensation, that claim is accepted in writing and compensation is paid under the Act. It argued that the Tribunal could go no further in dealing with the application. Reliance was placed, first, upon a discussion in the case of Green v VWA [3] and in particular on the passage (at p 372) where Tadgell JA stated:

"If a claim were established by a determination of the Tribunal (which was in effect a judicial award) or if the claim were accepted and met, for example by the making of weekly payments of compensation, the statutory entitlement would attach in accordance with its statutory terms."

"By contrast, the party obliged to pay compensation might then bear an onus to displace the entitlement if it were sought to displace it."

It seems to me that the appellant has sought to read too much into the passages quoted above from Tadgell JA. His Honour's analysis was made in the context of the question of where the burden of proof might lie in different circumstances. His Honour was not expressing a view as to the conclusiveness of the acceptance of any claim under the AC Act upon the acceptor or third parties.

46. Counsel went on to argue that the Tribunal was compelled to conclude on the facts found that the respondent was entitled to compensation under the Act simply because of the fact of the claim, acceptance and the continuing payment of compensation and filing of certificates by the worker and was not entitled to turn its mind to the question whether, in all the circumstances, there was in law an entitlement. Counsel submitted that the entitlement under the AC Act was to be determined by the Magistrate's Court or the County Court under the provisions of that Act and those courts had exclusive jurisdiction. Counsel then referred to the distinction in s 38A of the TA Act between a person "who is, or appears to the Commission, to be entitled". Counsel submitted that the fact of the claim and of its acceptance and the payment of compensation established that the respondent appeared to be entitled to compensation under the Act and again argued that the Tribunal was not required or entitled to go further to satisfy itself whether the entitlement existed or appeared to exist.

49. Finally, it was argued that, assuming the Tribunal could look into the matter in circumstances where there had been a claim and acceptance and payment, it could only intervene if satisfied that the employer or the insurer had erred in the view they had formed and that the Tribunal in its decision had not excluded the possibility of a separate view of the facts and the law being open.

52. In my view these arguments should not be accepted.

55. The legislation confers on the Tribunal the jurisdiction to review the decision of the TAC. While the question for the TAC was whether the respondent was a person "who is or appears" to be entitled to compensation under the AC Act, it does not follow that the Tribunal could only set aside the decision if satisfied that it was not open to the TAC to make the decision it did. The task for the Tribunal was to determine whether the decision of the Commission was, on the material before the Tribunal, the correct or preferable one. (See TAC v Bausch [1998] 4VR 244 at 263). It had to decide whether the respondent was a person "who is, or appears" to be entitled to compensation under that Act.

58. While the evidence of the claim, its acceptance and payment of compensation and provision of certificate under the Act was material relevant for the Tribunal to consider, it could not be conclusive. The evidence established that he was claiming and receiving compensation under the AC Act, but until a determination by a relevant Court or Tribunal, the question of his entitlement to compensation was not finally determined. It should also be borne in mind that entitlements can be revisited under the legislative scheme. The above evidence formed part of the evidentiary material before the Tribunal in reaching its decision on the above question.

61. As to the argument about the exclusivity of the jurisdiction of the Magistrates' Court and the County Court to determine entitlement to compensation under the AC Act 1985, it was common ground that such jurisdiction was exclusive. At the same time, however, the grant of exclusive jurisdiction does not prevent Parliament in other legislation creating a review procedure which may involve consideration of entitlements under the AC Act. That is what the Parliament has done in this instance. This could conceivably, in some cases, lead to a collateral attack on a decision of the Magistrates' Court or the County Court but that is unlikely. In the present case it does not. If the Tribunal, as here, decides that the AC Act does not apply, then the WorkCover Authority could, if it wished, presumably terminate payments under s 114 of the AC Act. The situation is an untidy one, but is the inevitable consequence of two systems of statutory compensation which, on occasions may arguably be applicable in the same individual case.

Whether the Tribunal misdirected itself on the question of what constituted "employment" for the purposes of the legislation

65. Counsel for the appellants submitted that the contents of par 16 of the reasons quoted above indicate that the tribunal misdirected itself in applying the concept of employment as it has been traditionally interpreted under the AC Act and its predecessors. In particular reference was made to the passage:

"Mr Dello-Russo had completed his work for the day and it cannot therefore be said that the injury arose out of or in the course of his employment."

Counsel for the respondent submitted that one should not construe these words too literally and that what the Tribunal was stating was, in effect, that the respondent's employment had been completed for the day prior to the injury and that, therefore, it could not be said that the injury arose out of or in the course of that employment. Counsel referred to the evidence about the surrounding circumstances including the respondent's statement and suggested that the Tribunal had used a short hand approach to try to make the point that the injury arose after the employment had concluded for the day.

70. I was referred to a number of authorities by counsel for the appellant which have developed the concept of "employment" over the years to the extent that the term as used in the legislation extends to the nature, conditions, the obligations and the incidents of employment and in particular the incidents of employment both before and after actual work duties start and finish. In other words the law has drawn a distinction between the actual work activities on the one hand and the employment on the other with the concept of employment embracing both the particular work activities but also activities incidental to the performance of those activities occurring both before and after the conclusion of those activities: Sharp v Johnson & Co Ltd [1905] 2 KB 139, 145-6; Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547, 556, 449, 572, 576; Johns Bros Pty Ltd v Francis [1956] VicLawRp 63; [1956] VLR 404, 408-9; Danvers v Commissioner for Railways [1969] HCA 64; (1970) 122 CLR 529, 536, 540, 541, 544; Fitzgerald v Ainsby Rubber Co [1987] VicRp 39; [1987] VR 437, 441-2; The Commonwealth v Oliver [1962] HCA 38; 1962) 107 CLR 353, 356, 363; Hatzimanolis v ANI Corp Ltd 91992) [1992] HCA 21; 173 CLR 473, 478; R & M Henderson v Commission of Railways [1937] HCA 67; (1937) 58 CLR 281, 293-4, 297; Thom v Sinclair (1917) AC 127, 135-6, 142, 145; Brooker v Thomas Borthwick (1933) AC 669, 676-7.

73. It must be borne in mind that it is a decision of a Tribunal with expertise in these matters, that is being considered. The difficulty facing the respondent, however, is the clarity of the language used by the Tribunal and the clear comparison made by it between the completion of "work for the day" and the "course of his employment". In all the circumstances I feel compelled to accept the argument that the Tribunal has inappropriately interpreted the expression "employment" in the legislation by limiting it to the particular work duties of the respondent and ignoring that it applies to the incidents attaching to those duties. I am conscious of the fact that I may be doing the Tribunal a grave injustice in so finding but the language used, in my view, requires that conclusion.

76. Having reached that conclusion, it follows that the finding of the Tribunal that the "employment was not a significant contributing factor" must also be regarded as vitiated by the same error.

79. These conclusions render it unnecessary to consider other arguments raised by the appellant.

82. It should not be thought that I have attempted to reach any conclusion as to whether a different result should follow if the correct interpretation of "employment" was applied. There are several issues to consider and they could give rise to different permutations and combinations which could theoretically lead to the same result. For example, it might be found that the injury arose in the course of the respondent's employment but it would then be necessary to consider whether the employment was a "significant contributing factor". I think it inappropriate, however, that I express any views on these matters because it seems to me that the appropriate way to deal with the matter is to refer it back to the Tribunal for further consideration.

86. For the foregoing reasons the appeal should be allowed and the matter referred back to the Tribunal for further consideration according to law.