Workcover Corporation (Just Cuts Pty Ltd) v Leanne Christie [2000] SAWCT 22

Workers Compensation Tribunal (SA)|2000-03-20|Before: Peterson JJ

1 The facts and issues arising out of this appeal are set out in the judgments of the other Members of the Full Bench and I will not repeat them here.

2 I agree with their conclusion that the appeal should be dismissed and in particular I agree with and adopt the general approach and reasoning of Acting Deputy President McCouaig. I wish however to make some brief observations of my own.

3 An appeal only lies to the Full Bench "on a question of law" This is to be contrasted with s 100(3) of the Act, as it was when it permitted appeals from Workers Compensation Appeal Tribunal to the Full Court of the Supreme Court. Apart from leave being required: S 100(1), it provided that appeals "should be limited a question of law". This is to be further contrasted with s 47 of the , which provided for appeals from the then Full Industrial Court to the Full Court of the Supreme Court. A right to such an appeal lay "on a matter of law".

4 As previously foreshadowed in my comments in John Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) JD10/1997, in my view, cognisance needs to be given to this change in wording. I think it reflects an intention by Parliament to tighten the criterion by which the competency of an appeal is determined. I respectfully adopt the observations of Cahill DCJ, Hill and Peterson JJ, sitting as the Full Court of the Industrial Court of New South Wales in Matters v. Gallagher Civil Engineering Contractors Pty Ltd (1993) 50 IR 127 at 135. Their Honours said:

"For s 383 to have application it is not sufficient, in our opinion, that an appeal instituted under the section should be concerned with a question of law merely arising from or involved in the decision of the Commission. The important words in the present context are `a decision of the Commission on the question (of law)'. That wording suggests to us that the decision on the question should be explicit, or, if not explicit, should be in relation to a question so clearly raised on the record that it must necessarily be accepted that the decision implicitly decides it."

5 That observation was approved of by Wright J and Hungerford J sitting in the Full Industrial Court of New South Wales in Hollingsworth v Commissioner of Police 47 NSWLR 151 at 175.

6 Although the appeal raises for consideration the application of a statutory provision to facts which are not dispute, it does not follow that the limited circumstances in which an appeal to the Full Bench of the Tribunal are permitted, have been met.

7 Whilst it is true, as Mason J (as he then was) observed in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7, that:

"Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." (see also South Australian Police Department v Tate JD111/1999)

one also needs to reflect upon the important qualification that His Honour then made, namely:

"However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens [1972] UKHL 6; [1973] AC 854 was just such a case. The only question raised was whether the appellant's behaviour was `insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact."

"It is for the Tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision."

9 Like Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 179, I think one should:

"... bear in mind the force of the frank confession by Scott LJ in Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350 at 362 ... His Lordship (speaking of workmen's compensation legislation) said:

`The question of whether and to what extent the incapacity of a workman results from an injury within the Act is obviously very often what is loosely called a mixed question of law and fact: Willis' Workmen's Compensation 36 ed, pp 263-317, is packed with a vast number of appellate decisions in which the courts have some times thought the decision of the county court judge (or his Scottish counterpart) was a decision of pure fact and refused belief, but in the great majority have discerned a mixed question of law and fact susceptible of appeal. In the latter event it means that the appellate court has analysed the decision of the first instance and seen that behind the factual form there has lurked a question of law - often a principle of high importance in the interpretation of the Act. But where the analysis is difficult and it is hard to see exactly what the point of law really is, there is a terrible temptation - to which I am sure my brethren will at least theoretically confess, and to which I am equally sure that I have myself succumbed before now - to shirk the intellectual task and take refuge in the view that the judgment under appeal was a finding of fact, with which we are forbidden to interfere'."

10 I also think it helpful to reflect upon a text cited by Wright J and Hungerford J in Hollingsworth v Commissioner of Police (supra) from Halsbury's Laws of England 4th edition (1973) Butterworths, London, vol 1, par 63 at 74-75. I set out hereunder text cited by their Honours:

"Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations in account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons; and misdirecting oneself as to the burden of proof.

There is often difficulty in deciding whether a question should be classified as one of law or as one of fact (or fact and degree). Determination of the primary facts is not a matter of law, but to make a finding unsupported by any evidence is an error of law. Drawing inferences from the facts as found, and in particular determining whether the primary or secondary facts fall within the ambit of a statutory description, are potentially classifiable as questions of law, as questions of fact, or as questions of mixed law and fact. The method of classification may be important, for judicial review of findings of law may entail an independent determination of the matter already decided, whereas review of findings of fact is likely to be more limited. If the question is one which only a trained lawyer can be expected to decide correctly, there is a presumption that it will be categorised as one of law. If the question is treated as one of mixed law and fact, the range of meanings that can reasonably be ascribed to a statutory expression is a question of law; but whether the facts as found fall within the ambit of that expression may be held to be a question of fact, on which the decision of the competent authority will not be disturbed unless it is perverse (or is such that no reasonable authority properly instructed in the law could have arrived at it), or is erroneous because a wrong legal approach has been adopted. In some cases the courts have asserted a slightly wider jurisdiction to hold inferences or conclusions of fact to be erroneous in law if they are clearly unreasonable." (Emphasis added.)

11 Returning to this case, in finding that the worker's injury occurred at her place of employment, the learned Deputy President did not misinterpret the relevant statutory provision; he adequately disclosed the reason by which he came to that conclusion; he drew inferences that were open to him; and he came to a result that was reasonably available to him.

12 Whether we would have reached the same conclusion and arrived at the same result, is not to the point. There has been no error of law.

14 This is an appeal from the decision of a Deputy President. He concluded the worker's injury occurred at her place of employment. This entitled her to compensation under the Act.

15 A question of law is required (s 86(1)). I am satisfied there is a question of law and did not understand Mr Martin of counsel for the respondent to contend otherwise: see Vickers v Jarrett Industries Pty Ltd (1976) 15 SASR 525, Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1.

16 The facts are not disputed. The worker was employed as a hairdresser in a salon on the ground floor of the Westfield Tea Tree Plaza Shopping Centre. The Plaza is a large shopping complex of two stories covering a vast area and containing a large number of shops as well as open mall areas. The hairdressing salon was located on the ground floor. The Plaza was closed to members of the public between 6.00 pm and 6.00 am on Wednesday.

17 On Wednesday 26 November 1997 the worker was required to attend a staff meeting. This was held in the public area on the first floor of the Plaza. The staff meeting concluded at 7.10 pm. The worker then proceeded downstairs to the hairdressing salon where she had left her personal belongings. She then proceeded into the Mall area with the intent of exiting through a fire door located on the outer wall of the shopping centre building. She sustained her injury in the Mall area.

18 The Corporation rejected her claim. It says the injury did not arise out of or in the course of her employment. It argues that she was not at her "place of employment" but rather at the time of her injury was in the course of a journey between her place of employment and her place of residence.

19 I set out the applicable parts of the legislation.

"`place of employment' means a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated;"

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

A disability that arises out of, or in the course of, a journey arises from employment only if -

the worker's place of residence and place of employment; or

and there is a real and substantial connection between the employment and the accident out of which the disability arises."

20 These provisions were introduced by amending Act No 49 of 1994. That Act introduced a new definition of "place of employment", struck out the definition of "journey" and limited compensation for journey accidents as indicated in s 30(5). This was a substantial reduction of the circumstances in which an entitlement could arise: see Beckwith v WorkCover (1995) 7 WCATR 716 at 721. In making these changes Parliament had to address a new issue. Previously it had not mattered where the place of employment ended and the journey began. That is because both were covered. When journeys were no longer covered, it was necessary to designate where the place of employment ended. An overview of the cases, particularly as they relate to the "abode" point of the journey when journeys were covered, indicates how Parliament decided to resolve the problem.

21 In Bowden v Murdoch's Ltd (1951) 51 SR (NSW) 423 the worker resided in a building constituted of 25 flats in one building. The premises had common areas namely the passageway outside the door of the unit and the staircase. While descending the staircase on his way to work the worker was injured. He claimed compensation contending he was on a journey from his place of abode to his place of employment. The Court of Appeal ruled against him. Street CJ with whom the other judges agreed stated (426):-

"In Williams v Ducon Condenser Ltd (1949) 23 WCR 122, Rainbow J had to consider a set of facts different from those in the present case, but, in the course of his judgment, he said:

`The worker must receive injury ... in the space between the two points I have indicated, namely, between the boundary of the home premises and the boundary of the employer's premises': (at 126)

His Honour also gave express approval to the decision in Thornley v Sydney Waterfront Watchmen's Association (1942) 16 WCR 57. In Fleury v Select Cake Service (1950) 24 WCR 15, Perdriau J, the Chairman of the Commission, said that, in his opinion, `The general intention of the Legislature, by its use of the phrase "between the worker's place of abode and place of employment" was to extend workers' compensation employment benefits to cover mainly public highway risks arising out of the journey to and from work, but not beyond that to home risks arising within the home building or its precincts'.

To some extent the question `What is a man's place of abode?' must always be a question of fact and degree, the answer being plain and easy in many cases.

In the present case I think it is clear that the Legislature had in mind the necessity for protecting a worker when he was on his journey, that is to say, when he was a traveller or wayfarer. In the most usual circumstances his journey, for this purpose, would commence when he first emerged into a place or way used by members of the community at large as a thoroughfare, whether as of right or not, for the purpose of moving from place to place; but I am not suggesting that this definition is all-inclusive, and that it would be sufficient for the determination of cases which might arise on other and different facts. But it is obvious that all the Courts that have been called upon to consider the meaning and effect of the language used in s 7(1)(b) and (c) have always had in mind this general concept that a man does not become a traveller till he emerges from the premises which are his place of abode. In one sense, of course, it may be said that in the present case his place of abode was Flat No 8, but where a man and his family live in a communal building where a number of separate tenants are housed in premises under one roof, then I do not think that it is apt to say that for the purpose of s. 7 his place of abode is limited to the flat occupied by him. To adopt the language of Perdriau J in Fleury's case, (1950) 24 W.C.R. 15; I think that the applicant's journey commences when he leaves the `home building or its precincts', and, with all respect, I find myself in complete agreement with the judgment of Moffitt J in Thornley v Sydney Waterfront Watchmen's Association (1942) 16 W.C.R. 57, and for the reasons expressed by his Honour."

22 This approach was commonly called the boundary test. It was considered by the Full Court of the Supreme Court in the context of the 1971 Act in Vickers v Jarrett Industries Pty Ltd (above cited). The issue was whether the worker was still in the course of a journey or had reached her place of abode. The legislation defined a "journey" as occurring "between his place of abode and his place of employment".

"... I think that the force of the preposition `between' has been underestimated. I agree that the governing concept is the concept of a journey but not necessarily the whole of the journey but only so much of it as is between the two areas. What is wholly inside one area cannot in my view be between that area and another area. What is between two areas is exclusive of both: Reg v Fisher [1839] EngR 221; (1837) 8 C & P 612 (173 ER 641). I agree with respect with what Smithers J said in Fillipone v Abel Drainers Pty Ltd (1969) 14 FLR 456, at p 461.

`In a case like this it is necessary for the appellant to devote some detailed attention to the location of the boundaries of his destination in order to show that they do not encompass the place where he was injured. For although, when injured, he may still have been travelling, the section may not avail him if he is travelling within the confines of the place which is identified as his destination.'

The definition of `journey' in sub-s 6 which I have quoted above emphasizes the concept of passage between two places.

Therefore, though I agree with much of Judge O'Loughlin's analysis of the concept of journey, I am of opinion that it is not the whole of the relevant journey which is covered by s 9(2)(a) but only so much of it as is between the place of abode and the place of employment. It follows that I agree that there is involved in the resolution of the question before us a boundary test of some kind.'

"I think, as I have said, that there are two requirements, firstly, that he should be in the course of a journey of the kind mentioned, and secondly, in the course of that part of the journey which lies between the two areas and is not wholly within either of them."

25 Walters J in the same case stated his opinion as follows at 534:-

"In my opinion, the basic concept underlying s 9(2)(a) of the Act is not suggestive of a `travelling' on a journey, but of a passing between the two specified points, so that the passage embraces not only a return to a point within the area of the residential property, but an entry or re-entry inside the limits of the actual place of abode."

26 Zelling J, the third member of the Court, rejected the boundary test. He did so because he concluded Bowden's case was productive of injustice. His Honour said at 545:-

"The word `between' imports a relationship between the journey and the two places mentioned, namely the `place of abode' and the `place of employment'. The journey must have been along a route between the two places ..."

27 The Full Court of the Supreme Court dealt further with the issue in Barton v Corporation of the City of Henley and Grange (1989) 51 SASR 290. The case concerned a worker who had commenced his journey to work from his home, incurred a flat tyre shortly into the journey and then returned home to change the tyre where he suffered his injury. The law then applicable, the 1986 Act, still covered journeys. White J with whom Prior J agreed stated at 297:-

"The place of employment is the physical area or place of the factory, office, work-site or appointed place where the worker is expected to report and be in order to commence his work - or it is one of the other places described in pars (d) and (e) of subs (3), such as at a doctor's rooms, a rehabilitation centre or a place for collection of compensation. It is necessary to bear steadily in mind from beginning to end the part which `place' plays in the concept of `journey'. A journey without a beginning is no journey. A journey without an end is no journey. The journey contemplated by s 30 is a journey which has a beginning and an end; and the only relevant beginning points and ending points are either the place of residence of the worker or the place of employment of the employer or where the employer expects the worker to be or where the Act allows him to be under pars (d) and (e) of subs (3)."

28 White J went on to hold that in common understanding and description the worker was in the activity of journeying when he got the flat tyre and was still journeying when he returned home to change it. He stated, (297):-

"All that happened between the point 50 yards down the road and his reaching that same point again on his second `trip' (to use a neutral word) after fixing his tyre, fell within the description of a deviation and/or interruption. In a commonsense way, that overall journey and deviation terminated at his place of employment."

29 In understanding how the law evolved at this time I set out the amendment affected by s 5 of Act No 47 of 1982. This amendment was made by Parliament following the Vickers v Jarrett decision.

"For the purposes of this section, a journey that terminates at a worker's place of abode shall be regarded as having terminated when the worker reaches land appurtenant to the house or other structure that constitutes his place of abode."

31 The effect of that amendment in 1982 was to return to the boundary notion laid down in Bowden's case. That boundary test was carried through in the 1986 Act in s 30(6)(a) which read:-

"... a journey that commences at a worker's residence shall not be regarded as having commenced until the worker has progressed beyond land appurtenant to the house or other structure in which the worker resides unless the Corporation determines in the circumstances of a particular case that the journey should fairly be regarded as having commenced at an earlier point, ..."

32 All this illuminates the Parliamentary intent in providing the definition for "place of employment" in the 1994 amendments. It effectively picks up the Bowden deliniation of the boundary for the purposes of "place of abode" and applies the same notion to the boundary of "place of employment". The journey does not commence until the worker has departed that place of employment. The intention is the worker will be covered until that departure occurs. (ie See S 3 in par 21 hereof)

33 In TransAdelaide v Karanicos (unreported Full Supreme Court, Judgment No S5536, 3 April 1996) the Court concerned itself with the meaning and application of s 30(5) of the Act as it currently appears. Having compared the current legislation with the former legislation Doyle CJ with whom the other members of the court agreed, observed the intention behind the amendments was to narrow the scope of what constituted a compensable disability. In disallowing the worker's claim the court observed that if a journey was involved, then the matter was determined by reference to s 30(5). But that very situation required the court to identify a starting point and a finishing point for the purposes of describing "the journey" (at 10).

34 Mr Luke contended that the injury was suffered by the worker after she ceased being at her "place of employment". He contended she was on her

journey. In saying this he accepted the attendance of the meeting was part of her employment.

35 As I understood his contention, the place of employment could only have been the salon within the shopping centre or the general area where the meeting was held on the first floor on that particular Wednesday, (see tr 11). All other points could have only be described in terms of "a journey". That was inter alia because there were no other points where she was required to carry out the duties of her employment.

36 In my opinion and for the reasons described above the place of employment extends to the whole of the shopping centre building and the land within the external boundaries of the land on which that building is situated. When a reference is made to the building, it is not a reference to a room or a shop within the building. Not only does the evolution of these notions, set out above, support that view, but the plain language used leads to no other reasonable conclusion. The worker satisfies both the geographical and the temporal conditions for entitlement.

38 This is an appeal from a decision of a Deputy President determining that the worker's injury occurred while she was at but in the process of leaving her place of employment within s 30(3)(c) of the Workers Rehabilitation and Compensation Act, 1986 ("the Act"), thereby entitling her to compensation.

39 The facts are not in dispute and are adequately set out in the learned Deputy President's decision.

40 It is the appellant's contention that the worker was not at her place of employment at the time of her injury, but that having collected her belongings and having left the salon she had left her place of employment and was on a journey, thereby bringing into consideration s 30(5) of the Act.

41 Pursuant to s 86(1) of the Act, an appeal to the Full Tribunal lies only on a question of law. The appellant contends that the learned Deputy President erred in law in taking into account and/or focusing on the worker's right to be upon the premises as a factor relevant to the determination of her place of employment. A worker's right to be on the premises was, it was submitted, irrelevant to this determination and to have regard to it was inconsistent with a proper application of the definition of "place of employment" in s 3 of the Act. That definition, it was submitted, required that only those factors relevant to a consideration

of the worker's duties of employment and the place where those duties were required to be performed at be considered.

42 Whilst it is true that the learned Deputy President refers to the worker's right to be upon the premises on the night in question, it seems to me that the point he was making is that the worker's right to be there derived solely from her employment and not by virtue of any public right. This is evident from the immediately preceding sentences:-

"But that is not the position here. At the time of the worker's fall, the Plaza was not open to the public. The worker's right to be upon the premises, arose solely as a result of the employer's leasing arrangements with Tea Tree Plaza Nominees Pty. Ltd., being the lessors of the Plaza."

43 The learned Deputy President then said, "In these circumstances, it seems to me that those portions of the Plaza to which the worker was required or permitted access by her employer, constituted her place of employment for the purposes of the Act". This is the critical line of his decision and points up the fact that what drove the conclusion he reached was the fact that the worker was "required or permitted access by her employer" to "those portions of the Plaza" including where she suffered her fall. I do not understand there to be any challenge to this factual finding which is in any event well established on the evidence.

44 Accordingly, I do not think that Mr Luke's contention that the learned Deputy President erroneously "focused his attention on the worker's right to be on the premises and a relationship between the employer as a lessee of the salon" (tr 4, 14) is well founded. On the contrary, I think it is evident that the learned Deputy President's focus was on whether the worker was at the time of her injury at a place where she was required to be to carry out her duties of employment. The reality is that to attend the meeting called by her employer the worker necessarily had to access public areas of the Plaza. In leaving the meeting she had to do likewise. At the time of her fall she was in the general mall area with the intent of exiting through a fire exit a short distance away. Because the Plaza was closed at the time, this was the only exit available to her. It was upon these undisputed facts that the learned Deputy President concluded that the worker's place of employment included the area in which she fell and sustained injury. I am not persuaded that the learned Deputy President erred in his approach to the issue at hand.

45 The appellant further contended that the learned Deputy President erred in law in determining that "those portions of the Plaza to which the worker was required or permitted access by her employer constituted her place of employment for the purposes of the Act". Clearly this was a conclusion drawn by the learned Deputy President based on the established facts.

46 It is apparent that the learned Deputy President considered that in all the circumstances the requirement on the worker to attend the staff meeting and the obvious need for her to access and egress the meeting place via the general mall area was sufficient for him to conclude that the site of her fall fell within the statutory definition of her place of employment.

47 What the appellant must do to succeed here is show that the established facts lead necessarily to the conclusion contended for by the appellant, namely, that the worker was not at her place of employment at the time of her fall. It is not enough for the appellant to show that the conclusion contended for on its behalf was open on the evidence, for that would not show that the learned Deputy President's conclusion was erroneous in law: WorkCover/MMI Workers Compensation (SA) Ltd (Ballestrin Concrete Construction Pty Ltd) v Gianfranco Giocondo Zanini JD125/1999 and the cases cited therein.

48 That a different conclusion was possible does little to assist the appellant. If the conclusion reached by the learned Deputy President was reasonably possible, or if, as has been said, it is a question of evaluation or degree, it cannot be said that there has been an error of law.

49 In my view, it cannot be said that the conclusion reached by the learned Deputy President was not open on the evidence.

50 I did not understand Mr Luke to dispute the proposition that the worker was at her place of employment whilst attending the staff meeting on the first floor. He acknowledged "that that was where she was required to carry out her duties of employment or do something incidental to her employment" (tr 13). Had the worker slipped immediately upon leaving that meeting place, or on the escalator returning to the ground floor, would she have sustained injury at a place where she had been required to be in order to carry out her duties of employment? But for the requirement of her employer, she would not then have been on the first floor or on the escalator. On the established facts here, but for the requirement of her employer she would not have been where she was at the time she did slip and injure herself.

51 I am far from persuaded that the established facts lead only to the conclusion contended for by Mr Luke. That being so, it being a question of evaluation or degree, no question of law arises.

52 Mr Luke submitted that the worker's place of employment was not a building, and that it didn't become a building by virtue of the Plaza being closed to the general public at the time of the worker's fall. I do not take issue with this submission, and need only observe that the learned Deputy President did not determine that the worker's place of employment was the whole building. What he determined was that those portions of the

Plaza to which the worker was required or permitted access by her employer (in order to facilitate her attendance at the staff meeting) constituted, on this occasion, her place of employment.

Compensation Act 1971

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