Waratah Engineering Pty Ltd v Baggs

Relevant facts 11Waratah's principal place of business is at Argenton in New South Wales. That business includes the manufacture, supply and maintenance of underground mining equipment used in coal mines in Australia and New Zealand. Although he was employed by Waratah and usually based at Argenton, Mr Baggs' work occasionally required that he travel to and work in and around coal mines in New South Wales, Queensland and New Zealand. 12In July 2010 Mr Baggs and another employee of Waratah, Mr Pearson, travelled to New Zealand by air. They did so at the direction of Waratah. After staying overnight at Greymouth, they set out for the Pike River coal mine. The motor vehicle accident occurred on that journey. The purpose for their travelling to the mine was to instruct mine workers in the use and maintenance of coal extraction equipment which had been supplied by Waratah. It was proposed that they attend at the mine for one week to carry out that work. 13Facts were agreed to enable the separate and two related questions to be decided. Those facts are set out by the primary judge at [6]. They include, in addition to those summarised above, that: "5. The plaintiff's employment was usually based at the defendant's principal place of business. 6. The plaintiff's work included work at that place when required in and around coal mines in NSW, Qld and NZ. 7. In the days prior to Sunday, 11 July 2010, the defendant directed the plaintiff to travel to the Pike River coal mine, New Zealand ('the mine') with another employee of the defendant, Barry Pearson, for the purpose of his employment duties. 8. The plaintiff had been directed by the defendant to attend the mine previously and did attend the mine between 07/08/2008 and 13/08/2008. 9. As part of his employment duties with the defendant, the plaintiff had previously attended coal mines in NZ as follows: Pike River mine in August 2008 and Spring Creek mine in December 2008. ... 11. The defendant directed the plaintiff to attend the mine to train Pike River workers in the use and maintenance of the 'Waratah Guzzler' at the mine. 12. Pursuant to that direction from the defendant, the plaintiff and Barry Pearson travelled by air from Sydney to Christchurch, NZ on Sunday 11 July 2010 and from there in a vehicle provided by the defendant to Greymouth NZ for overnight accommodation before travelling to the mine. ... 25. The plaintiff had attended to Pike River mine and performed work in and around the mine in the course of his employment with the defendant on three previous occasions."

The District Court proceedings 14Mr Baggs commenced proceedings against Waratah alleging that it was vicariously liable for the negligence of Mr Pearson, as driver of the vehicle. The heads of damage claimed include non-economic and economic loss, not limited to damages for loss of earning capacity. Specifically, Mr Baggs makes claims for past and future medical expenses and for past gratuitous and future paid care services. 15Waratah maintains that Mr Baggs' common law claim is subject to the WC Act and WIM Act, including the amendments made by the Workers Compensation Amendment Act 2001 (No 61) and the Workers Compensation Legislation Further Amendment Act 2001 (No 94). Those amendments include ss 151G to 151IA of the WC Act, which limit the damages that may be recovered to damages for past and future loss of earnings (s 151G). No such damages may be awarded unless the injury results in a degree of permanent impairment of at least 15 per cent (s 151H). 16These provisions apply by s 151E to an award of damages in respect of "an injury to a worker" which occurred at any time after 30 June 1987: s 151U(1)(a). Mr Baggs says that they do not apply to him because of Schedule 6, Part 18, cl 3(1) of the WC Act, which by s 282 provides: "3(1) Subject to this clause, the 2001 amendments do not apply to or in respect of coal miners and this Act and the 1998 Act (and the Regulations under those Acts) apply to and in respect of coal miners as if the 2001 amendments had not been enacted." 17The "2001 amendments" include those introduced by ss 151G to 151IA. 18Clause 3(4) defines "coal miners" to mean "workers employed in or about a mine". A "mine" is defined in s 3(1) of the WC Act to as a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002. Section 5(1) of that Act contained the following relevant definition: "Mine" when used as a noun includes (subject to subsections (3)- (16)) any place, land, building, structure, pit, shaft, drive, level, drift, excavation and work on or in which, or whereby, any operation for or in connection with mining is carried on and any pipe, conveyor or ropeway used for the conveyance of coal or stone, but does not include a coal preparation plant that is a declared plant under Part 5A. Subsections (3)-(16) are not presently relevant.

Issue in the appeal 19The issue in this appeal is whether at the time of the motor vehicle accident Mr Baggs was employed "in or about" the Pike River mine and accordingly a "coal miner" within cl 3(1). That and two related questions were determined separately by the primary judge. The related questions were whether, by s 150A of the WC Act, the law of New South Wales governed Mr Baggs' claim for common law damages and whether the Pike River coal mine in New Zealand is a "mine" for the purposes of cl 3(4). Each was answered in the affirmative and is not in issue in the appeal. 20Waratah's application for leave to appeal is not opposed. It should be granted. The appeal raises a short but difficult question of construction concerning a provision which is of general application and importance. That question was noticed, but not decided, by this Court in Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; 2 DDCR 744 at [15] (Handley JA) and [57]-[58] (Beazley JA as her Honour then was).

The arguments of the parties 21The arguments of the parties may be stated briefly. Waratah contends that not being someone who was engaged to work habitually or usually in or about a coal mine, Mr Baggs could only answer that description in relation to an injury if he was working "in or about" a coal mine at the time of the accident. Mr Baggs did not do so because at that time he was travelling to the mine but had not commenced working there. Waratah accepts that if the respondent had arrived at the mine he would, whilst engaged there as part of his employment, have answered the description of someone employed "in or about" a mine. 22Mr Baggs argues that he answered the description of a worker employed "in or about" the mine at the time of the accident because at that time he was, at the direction of his employer and in the course of his employment, travelling to the Pike River mine for the sole purpose of undertaking work in it. His employment at the time of the accident is to be characterised by reference to the overall undertaking which he had embarked on when he travelled to New Zealand. That undertaking was working "in or about" Pike River mine for a period of a week.

Discussion 23When the WC Act was introduced in 1987, it retained for the benefit of workers employed "in or about" a coal mine some of the more favourable provisions which existed under the 1926 Act. That was done by Schedule 6, Part 18 which was entitled "Special Provision Relating to Coal Miners". Those benefits included the absence of a maximum weekly compensation payment (cf s 35 of the WC Act), the right to redeem entitlements by lump sum payment (s 15 of the 1926 Act) and the application of a regime that included deemed total incapacity (s 11(2) of the 1926 Act). More significantly in the present context, that differential and favourable treatment continued in relation to a number of the substantial amendments made in 2001. 24The expression "worker employed ... on, in or about" a place or locality was used in the Workers Compensation Act 1897 (UK) to describe the employment to which it applied. Section 1 provided that compensation was payable for injuries "arising out of and in the course of employment" to which the Act applied. By Section 7(1) the Act applied only to "employment by the undertakers as hereinafter defined, on, in or about a railway, factory, mine, quarry ... or engineering work". Speaking generally, the reference to "undertakers" was to the persons engaged in the undertakings which the Act treated as "employments". They were defined to include the occupier in the case of a factory, quarry or laundry, the owner in the case of a mine and the person undertaking the construction, alteration or repair in the case of an engineering work. Each of those things - railway, factory, mine, quarry or engineering work - as defined, described a place and not a trade or business. 25The second part of the inquiry called for by s 7(1) was whether at the time of the accident causing injury or death, the worker was employed "on, in or about" the relevant place: Chambers v Whitehaven Harbour Commissioners [1899] 2 QB 132 at 135. The focus of that inquiry was on the particular work being undertaken at that time and its locality: Back v Dick Kerr & Co Ltd [1906] AC 325 at 329. In some cases the issue concerned the definition of the relevant place and whether at the time of the injury the work was being undertaken "on or in" it. For example, in Chambers the workman, who was employed on dredging operations in a harbour, had left the dredger and accompanied a hopper containing mud to sea where he was drowned. Assuming the dredging of the harbour to have been an engineering work, the worker's employment at the time he drowned was held not to have been "on, in or about" that place. In Atkinson v Lumb [1903] 1 KB 861 the engineering work was held to include the area where a workman was laying pipes in a trench; and in Griffin v The Houlder Line, Ltd [1904] 1 KB 510 a seaman working on a ship in a dock was held to be employed in a factory at the time of the accident which resulted in his death because a factory, as defined, included a dock and the vessel was occupying a berth in the dock. 26In other cases the issue was whether the work was being undertaken "about" the relevant factory or mine. That word was an "enlarging word" so that the language of the section could be satisfied if the employment was in close proximity to the relevant locality: Chambers at 135. In Powell v Brown [1899] 1 QB 157 a worker in the service of builders was loading timber onto a cart on the street near the entrance to their factory premises. His employment was held to be "about" the factory because it was at a place habitually used when goods were taken from the factory to be sold or transported away. Collins LJ observed (at 160) that the business carried on at the factory included the stowing of timber into carts. The word "about" required but was not determined solely by the physical proximity of the place of the accident to the relevant locality. 27Collins MR took this point up again in Owens v Campbell [1904] 2 KB 60. The issue was whether a fireman employed on a passenger steamer which was lying alongside a wharf (which for certain purposes was within the definition of a factory) was at the time he was injured in the performance of those duties employed "about the wharf". In a passage later adopted as correct by Gibbs J (Stephen and Mason JJ agreeing) in R v Neil; Ex parte Cinema International Corporation Pty Ltd [1976] HCA 11; 134 CLR 27 at 32, and cited with approval by Handley JA in Ellavale Engineering at [6], Collins MR observed (at 64): "... it is pretty well settled that the word 'about', as used in s.7, carries with it the idea of physical proximity; but it also involves the idea of an employment connected with the business carried on at the place indicated. ... We have to look at the nature of the factory and the character of the workman's employment, and the mere fact that he was employed by the undertakers in juxtaposition to a factory in the occupation of his employers does not make his employment one that is 'about' the factory. To take an example: suppose that a coachman comes to a factory to drive the occupier, who is his master, home, and at a distance of, say, 50 yards from the factory the coachman meets with an accident. The man would be in the employment of the occupier of the factory, and he would be near it, but his employment could not be said to be on or in or about the factory, because it was not concerned in any way with the business of the factory." 28Thus, the newspaper seller at the factory gate is not relevantly employed "in or about" the factory although engaged in work in close physical proximity to it. Nor is the postman or courier who makes deliveries to the factory or mine for the purposes of his employer's business. For the expression to be satisfied it is not sufficient that the worker is injured in or about the relevant place and doing something in the course of his or her employment. There must be some additional connection between what the worker is engaged or occupied in at the time of the injury and the business or operation carried on at that place. Ex parte Cinema International Corporation concerned the interpretation of the membership eligibility clause of a registered industrial association which conferred coverage on "employees employed ... in or about theatres, halls ...". Having stated that the expression "employed in or about a place" involved the idea of an employment connected with the business carried on at that place, Gibbs J continued (at 32): "An employee who is required to leave what might be called his headquarters, and to visit other places in the course of his employment, is not employed in or about those other places; for example, a clerk who goes to the post office to post a letter, or to a court to file a document, or to a warehouse to make a purchase, on behalf of his employer, is not employed in or about the post office, court or warehouse." 29In Taylor v The Cecil Syndicate, Ltd [1906] St R Qd 324 a worker was injured while engaged in screening tailings to prepare them for treatment at a cyanide works. The issue was whether at the time of the accident he was "employed in or about a mine" within the meaning of s 218 of the Mining Act 1898 (Qld). Cooper CJ concluded that he was on the basis that the tailings area was a place where an operation connected with "mining purposes" was being undertaken. 30Two things may be noticed about the language of cl 3(4) and the definition of "mine" as it was in s 5(1) of the Coal Mines Regulation Act 1982. First, that definition is of a place or locality or structure, on or in which, or whereby, any operation for or in connection with mining is carried on. So defined it describes the area where the mining activity takes place. That area includes places where physical structures or improvements such as pipes used for the conveyance of coal are located. The second is that the expression "employed in or about" is concerned with the physical position or proximity of an employment activity relative to that area. However, as the cases cited above suggest, that expression is not concerned solely with whether work is being undertaken in or near the mine. It also implies a connection between the work being undertaken and the business or activity of mining. 31Ellavale Engineering was concerned with the meaning of the expression "worker employed in or about a mine" as used in Schedule 6, Part 18 of the WC Act as it stood in June 2000. There was no doubt in that case that the worker's employment activity at the time of his injury was connected with the operation of the mine. Ellavale Engineering provided services which included the maintenance and repair of drag line cranes operated in open cut coal mines. Mr Pilgrim was employed by Ellavale Engineering as a leading hand fitter and turner. In June 2000 he attended the Ravensworth Mine in the Hunter Valley to service the overhead cranes of the mine's three drag lines. Whilst doing so he was injured. Mr Pilgrim maintained that he was entitled to the enhanced statutory benefits available to a "coal miner". His employer contended that he was not. It argued that to answer the description "employed in or about a mine" he had to be employed by the mine operator and the general nature of the work required to be undertaken by the terms of his employment or engagement had to answer that description. It was not sufficient that the particular work or job he was undertaking at the time of injury may have done so. 32Each of these arguments was rejected. Handley JA and Beazley JA gave separate reasons for doing so. M W Campbell AJA agreed with the reasons of each. In rejecting the first argument, Handley JA observed at [3] that the expression "worker employed in or about a mine" may be satisfied irrespective of the identity of the worker's employer. When considering the second he observed that the description "employed in or about a mine" could be satisfied by someone who was injured whilst working at a mine in a way connected with the mining business notwithstanding that the general nature of his duties did not require that he regularly or continuously do so. Handley JA concluded that Mr Pilgrim was at the time of his injury "employed in or about" the mine. His general duties required that he attend coal mines and service mining equipment. Performance of those duties involved activities connected with the business of mining. The equipment used in the mining process was required to be serviced regularly to assure its continuing reliable and safe operation. It did not matter that the worker was not occupied full-time or even 50 per cent of the time in such activities in or about coal mines. 33Handley JA continued: "[13] It seems to me that nothing turns on the regularity or otherwise of the work done by a worker in or about a coal mine. The focus is on the actual work being done by the worker at the time of his injury provided this was substantially centred in or about the mine. This excludes workers who visit the mine in the course of their employment for relatively short periods whose general work is not in or about the mine. It includes a worker whose general work for the time being is in or about the mine even if it is expected to last only for a relatively short time and whether his employer is the coal mine operator or not. [14] A tradesman, employed by a contractor, called in for a short job underground, measured in hours or days, who is injured at the mine would, in my judgment, be employed in or about the mine at the time of his injury regardless of the general nature of his duties before that job. In other cases the fact that the employer is the mine operator may be important, for example in the case of truck drivers employed by the operator for the transport of coal from the mine. [15] A tradesman such as the respondent who worked for between 36% and 47% of his time in or about a coal mine is a coal miner as defined while doing such work, but not at other times, and he would not become a coal miner at other times even if more than half his work over some more or less arbitrary period was in or about a coal mine. The problems with journey cases in this situation can be left to another day." (emphasis added) 34The question whether Mr Baggs was "employed in or about a mine" at the time of his injury is a different question from whether his injury occurred "in or about a mine". It is also a different question from whether his injury occurred in the course of his employment. As Handley JA notes in Ellavale at [6] and [7], in this context "employed" is used to refer to the work in which the employee is engaged or occupied in the performance of the duties of his employment. That question directs attention to the work being undertaken at the time of the accident. It is that work, undertaken in the course of the worker's employment, which must answer the description "in or about" a mine irrespective of whether it is being undertaken as a specific task or during a period of time, whether short or long, regular or irregular. That appears from the passages of Handley JA's judgment at [13] and [15], which are emphasised above, and in his conclusion at [16] as follows: "[16] The respondent was injured on the mine site at a time when the general nature of his duties was in or about the mine, that was where for the time being he was going to perform the duties of his employment and these duties were connected with the business of the mine operator. He was therefore a coal miner as defined." It also accords with the reasoning of Beazley JA at [75], [76] and [81]. 35Thus, the requirement of employment "in or about" describes a relationship of physical proximity and connection between what the worker is engaged or occupied in doing in the course of his or her employment at the time of the injury and the mine, including its business. That employment does not have to be by the owner or operator of the mine. However, it will be relevant to whether work answers that description to take account of the identity of the worker's employer and the general nature of his or her work duties. Each of these matters assists an understanding of the connection between the work in which the employee is engaged and the relevant mine. This is particularly likely to be so where the worker is not employed by the mine operator but attending at the mine or where the worker is employed by the mine operator but working away from the mine. 36The primary judge accepted Mr Baggs' submission that at the time of the accident the general nature of the activity or work in which he was engaged was that of working in the Pike River mine for a period of a week. He reasoned as follows: "[43] This leaves for consideration whether I am able to construe the provisions of the legislation in such a way that the plaintiff in these proceedings may be characterised as a coal miner whilst travelling to a coal mine to perform work which, if performed at the coal mine he would do so as a coal miner. ... [44] It was Mr Sexton's submission that once a person was characterised as a coal miner for a particular situation or circumstance, then he or she did not lose that characterisation while doing something which was part and parcel of that work and within the scope of that occupation. ... Accordingly, it being uncontroversial and admitted for the purpose of the proceedings that the plaintiff would have been a coal miner whilst performing at the Pike River mine (leaving aside questions of extraterritoriality), there is no reason why he should lose that characterisation while proceeding to the mine for the purpose of undertaking that work. [45] As a matter of practicality, and common sense, I find this submission to be persuasive. ... [46] The approach to construction which I favour is consistent with the general approach adopted by Handley JA, the thrust of which is to have regard to the general nature of the worker's service. The plaintiff would have been characterised and regarded as a coal miner once he had reached the mine. I cannot see any good reason why he would lose that characterisation and not be so regarded whilst travelling to the mine to perform the work of a coal miner. [That] ... was something which he was undertaking in the course of that part of his employment, and was clearly within the scope of his employment. Whilst doing so, and when injured he was a coal miner for the purpose of the Act and entitled to have his claim for damages considered as such." (emphasis added) 37The primary judge's reasoning starts with the "uncontroversial and admitted" proposition that had Mr Baggs commenced working at the mine he would have been a worker "employed in or about" it. That would have been so because he would have been doing work in or about the mine which had a connection with the mining operation and was undertaken as part of his service to or employment by Waratah. It does not follow, however, that whilst travelling from Greymouth to the mine he was working in or in close physical proximity to the mine and in an activity connected with it. Indeed it is not part of Mr Baggs' argument that at the time of the accident he was engaged in a work activity within sufficient physical proximity to the mine that it answered the description "in or about" the mine. 38The primary judge's reasoning addresses the question of characterisation of the work being done by Mr Baggs at the time of the accident from the perspective only of his employment by Waratah. From that perspective the task of travelling to New Zealand to spend one week working at the Pike River mine constituted a single overall period of work for the purpose of considering whether the injury and accident, which happened on his journey to the mine, occurred in the course of his employment with Waratah: see Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 at 483-484; Comcare v PVYW [2013] HCA 41; 303 ALR 1 at [29]. That period commenced when he set out from Sydney for New Zealand and might be described as a period in which he was employed in or about the Pike River mine. However, it does not follow that he was a "coal miner" within cl 3(4) from the moment he travelled from his home in Sydney until he returned there. 39The primary judge's approach does not address the correct question, which is whether at the time the accident happened the work in which Mr Baggs was engaged was being undertaken in or in physical proximity to the mine and for purposes connected with the business or operation of the mine. At the time of the accident Mr Baggs was travelling to the mine by road. He had not commenced any activity or duty at the mine or which was part of the mining operation. Nor was he in sufficient proximity to the mine to be "in or about" it. As Handley JA observed in Ellavale Engineering at [13], the focus is on "the actual work being done at the time of his injury". The fact that Mr Baggs was travelling to the mine to undertake activities which, when undertaken, would have answered the relevant description did not have the consequence that his doing so also answered that description. The primary judge erred in concluding otherwise. Had Mr Baggs been engaged in work at the mine at the time he was injured he would have been employed "in or about the mine" and that would have remained the position irrespective of whether at the relevant time he was working underground or on a break.

Conclusion 40For these reasons the following orders should be made: (1)Leave to appeal granted. (2)Appeal allowed. (3)Set aside the order made by Marks ADCJ on 2 November 2012. (4)Order that the question whether the respondent was at the time of his accident on 12 July 2010 a "coal miner" for the purpose of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 be answered in the negative. (5)Order that the respondent pay the applicant/appellant's costs of the appeal. 41The primary judge reserved the costs of the application before him and gave liberty to the parties to apply in the event that they were unable to reach agreement as to those costs. In the circumstances it is not appropriate that this Court make any order as to those costs. If the parties are unable to agree as to the appropriate order in relation to those costs, that question should be dealt with by the District Court, taking into account the applicant/appellant's success in this appeal. 42SACKVILLE AJA: I have had the advantage of reading the judgments of Meagher JA and Basten JA. I agree with Meagher JA. 43I accept that the focus of cl 3(4) of Schedule 6, Part 18 of the Workers Compensation Act 1987 ("WC Act") is on the employment of the worker. Thus although it is unnecessary to decide, there would seem to be no difficulty in concluding that a worker employed full time or substantially full time in or at a mine is a "worker employed in or about a mine", even if that worker is injured while travelling to the mine site. Such a person is employed in substance only to perform tasks in or at the mine. 44The agreed facts in this case state that the respondent's employment was usually based at Waratah's principal place of business in New South Wales. His employment required him to attend coal mines from time to time. The frequency of his attendances at mines is not stated in the agreed facts. 45In these circumstances, Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; 2 DDCR 744, suggests that Mr Baggs had to satisfy two conditions in order to be a "worker employed in or about a mine" at the time he sustained his injuries. The first is that his employment at the time of the injury had to be connected in some way with the business carried on at the relevant place, in this case the Pike River Mine: at [6], [11], [16], per Handley JA; at [75], [81], per Beazley JA (M W Campbell AJA agreeing with both). Clearly he satisfied this requirement. The second is that at the time of the injury his employment took him to the mine or in close physical proximity to it: at [70], [75], [79]-[81]. Beazley JA supported the second requirement by reference to the purpose of the Coal Mines Regulation Act 1982 (the benefits of which Sch 6, Pt 18 of the Workers Compensation Act 1987 preserved), which her Honour saw as recognising the inherent dangers for those who work at a mine or close to it, whether they are directly involved with the extractive process or not. 46The statement of agreed facts did not identify the precise location of the accident, except to say that it occurred while the respondent was a passenger in a vehicle travelling along Taylorville Road, from Greymouth towards the mine. This Court can take judicial notice of the fact that the Pike River Mine is about 45 kilometres from Greymouth: Evidence Act 1995, s 144(1). (This information is available from a number of incontrovertible sources, including the Report of the Royal Commission on the Pike River Coal Mine Tragedy (2012).) Since the agreed facts indicate that the accident took place about 15 minutes after the respondent and Mr Pearson (the driver of the vehicle) left Greymouth, it clearly occurred at a considerable distance from the mine, well beyond the point at which the respondent would be exposed to any danger from activities or mishaps at the mine itself or in the area affected by mining operations. 47At the time the respondent sustained his injuries, he was acting in the course of his employment since his employer required him to travel to the mine. But as Meagher JA has pointed out (at [34]), the question of whether the respondent was "employed in or about a mine" is a different question from whether his injury occurred in the course of his employment. At the time he was injured, the respondent was certainly employed to perform duties connected with the operations of a mine. No doubt it could also be said that he was employed to travel to a mine. But, in my view, at the time he sustained injuries he was not employed in or about a mine. 48There is no occasion to consider whether, if the accident had occurred very close to the mine gate, the respondent would have satisfied the statutory language. On the facts of the case, the accident did not take place "about" the mine.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2013