Vizzari v Workcover/Mercantile Mutual Insurance

4 The claim was rejected by the agent on the basis that the worker was "not acting in the course of your employment with Northrock Pty Ltd, nor were you situated in the employment premises of Northrock Pty Ltd". The worker contends that he brings himself squarely within s 30(2)(a) of the Act without anything more. That is to say that he says that the incident is compensable because it arises out of or in the course of employment.

5 In TransAdelaide v Karanicos (1996) SASC 5536, his Honour the Chief Justice, talking about the journey provisions of s 30(5), in particular s 30(5(a), of carrying out "duties of employment", said two interesting things: first of all, that it seemed on the face of it, although he did not decide this point, that s 30(2)(a), "course of the employment", was a wider concept than "duties of employment" in s 30(5)(a). His Honour said that in the journey context it talks about "was the worker performing the worker's job". He gives two other examples which are not relevant here, then goes on to say "or doing something reasonably incidental to one of those things".

6 This is not a journey case and it is not said to be a journey case. There are all sorts of intellectual difficulties posed if this is a journey case. The real issue is: was the applicant performing his job, or was he doing something reasonably incidental to it.

7 The fact is that the worker said his motivation for stopping to speak to Frank - and he knew him as Frank - was that Frank was a frequent customer of the Food Shack.

8 Allied to that, he said that as the general proposition it was "company policy" that he should ensure that at all times regular customers of the business were kept "on side" so they would keep coming back. He estimates 40 to 50 per cent of his business came from regular customers who either owned shop premises within the shopping centre or were employed by the shopping centre. I have some doubts myself about whether that could be dignified by "company policy" but it was a course of conduct that was entirely understandable. Whether it is "company policy" or not is beside the point.

9 Here we have a working director of a coffee shop in a big shopping centre. This shop draws half its clientele from employee/operatives in the shopping centre. It would be in the interests of business for some sort of polite social intercourse to take place between the coffee shop proprietorship and customers, particularly if they are repeat customers. The basis of the particular relationship, if it is called a "relationship", between the proprietor and the customer is precisely the fact that Frank was a customer. The fact that he was described as "a friend" at 37, in answer to a question from an interviewer, is not to the point. That issue of a "friend" is critical to the respondent's position in this case. Attempting as the respondent does to draw a distinction between "customer", and "friend" is quite artificial.

10 What the respondent says is that the worker placed himself outside the duties of employment, or indeed outside the course of employment, because at the time he joined Frank there was "no calculation" - and I do not know of what there was supposed to be a calculation. I gather from Mr Luke's earnest address that he was supposed to calculate, "Well, this man today, is he wearing the hat of a `friend' or is he wearing the hat of a `customer'?" Nothing entered into the worker's mind about, "How do I distinguish between those two?" He just saw Frank there, he was a friendly person so he went to have a coffee with him.

11 According to the respondent, it was then that the character of the applicant's passage back from the manager's office to the Food Shack was transmogrified, if I might quote the Bible, "in the twinkling of an eye" from an activity which was in the course of the employment which the return trip to the Manager's Office certainly was, to a social exercise. From thereon, I suppose up until such time as he had come back inside the shopping centre, he was engaged upon a social exercise. Then again that exercise was transmogrified into an activity which is in the course of the employment. I reject that analysis as too metaphysical for me.

12 No explanation is offered by the respondent for rejecting the claim other than this question of the word "friend" used, I might say, by an applicant whose command of the English language is not particularly good. No other explanation is offered for the social intercourse. Frank was not a relative of the worker. He was not a supporter of the same football club. There is no evidence that he went to the same church. Indeed, it was precisely because Frank was a customer that the applicant worker attended upon him and joined him for coffee.

13 Bearing in mind the worker, as a working proprietor, would have - and I believe that he did have - the goodwill of his business close to the front of his mind, I would have thought that on this day his intercourse with Frank arose within the course of the employment of the worker with Northrock Pty Ltd and I so find. It would even fall within the narrower test of s 30(5) - doing something incidental to his job.

14 I accept that Mr Vizzari is in the hospitality business. He has been in the hospitality business for years. He would regard everything he did - and I think Mr Saies put it correctly - from the moment he got to the shopping centre until the moment he left - as part of his work.

15 I do not find it at all difficult to understand that a person, particularly a person of Mr Vizzari's cultural background, should meet and greet people in the centre whom he knows as customers. He would regard it as part of his public relations exercise in operating this coffee shop. I would have thought it is patently obvious that that is the way he approached things.

16 I adopt the words of Judge Gilchrist in Russo v WorkCover Corporation / Mercantile Mutual Insurance (SA) Workers Compensation Ltd (SK and A Savas) JD70/1999. His Honour said:

"In my opinion the worker's actions in proceeding to the shop to buy and consume some food immediately prior to collecting a booked fare was an entirely reasonable thing to have done and one which I think ought to be regarded as a natural incident to his employment."

17 I take some comfort from Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 at 536 as quoted in Karanicos (supra):-

"... 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."

18 In the words of Sir Owen Dixon in Henderson v Commissioner for Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 at 294, work "includes the doing of whatever is incidental to the performance of the work".

19 I adopt the quote from Hatzimanolis v ANI Corporation Ltd in the High Court[1992] HCA 21; , (1992) 173 CLR 473 at 484:-

"In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment."

I must say that in spite of the submissions put by Mr Luke I think this is a very clear case.

20 It is very clear to my mind that Mr Vizzari was acting in the course of the employment. I do not find that Christie v. WorkCover Corporation/HIH Workers Compensation (SA) Ltd (Just Cuts Pty Ltd) JD77/1999 is of any assistance to me at all.

21 I reverse the determination and order the respondent to pay the worker's costs.

22 I will settle this judgment in due course and it will be published, and the time for appeal will run from the day of its publication.

(His Honour went to deal with consequential matters.)

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 Form 11 within 14 days of the delivery of this decision and must be served on all parties.