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[2007] SAWCT 59
General information, not legal advice.
Workers Compensation Tribunal (SA)
2007-11-20
Original judgment source is linked above.
1 This is an appeal that concerns whether a learned Deputy President was right to find that Mr Peter Jellicoe died in compensable circumstances for the purposes of the Workers Rehabilitation and Compensation Act 1986.
2 At the time of his death Mr Jellicoe was in the course of a journey between his place of employment and his place of residence. Pursuant to s 30 of the Act, a disability that arises out of such a journey is only compensable if the journey was undertaken in the course of carrying out duties of employment or if there was a real and substantial connection between the employment and the accident out of which the disability arose.
3 It was acknowledged by the parties that if Mr Jellicoe's death occurred in compensable circumstances it had to be established that the journey that he was undertaking at of the time of it, was in the course of carrying out duties of employment.
4 The learned Deputy President, whose decision is the subject of this appeal, concluded that it was.
5 The issue raised on the appeal is whether the evidence permitted that conclusion.
Background
6 At all relevant times Mr Jellicoe was employed by Dr Peter Robertson as a general handy man working on Dr Robertson's farm property at Balhannah. That property is about two or three kilometres away from where Mr Jellicoe lived with his wife Josephine. Mr Jellicoe would travel to and from work on a small country road that took him directly to Dr Robertson's property.
7 Mr Jellicoe generally worked for Dr Robertson from 7.00 am to 4.00 pm Monday to Friday and undertook such duties as he was directed to perform. He also was frequently directed by Dr Robertson to return to work in the evening and on weekends. He was paid a flat rate of $543 per week irrespective of the actual number of hours he worked. It follows that the consideration for which he was paid pursuant to his contract of employment included payment for these call out situations.
8 As was his custom, Mr Jellicoe finished work for the day on 5 February 2004 at about 4.00 pm. At 7.30 pm that evening Mrs Jellicoe received a phone call from Dr Robertson. Mr Jellicoe had already gone to bed. Dr Robertson told Mrs Jellicoe that he wanted Mr Jellicoe to return to the Balhannah property because some water had flooded over the laundry floor and he wanted Mr Jellicoe to attend to it. Somewhat reluctantly Mrs Jellicoe passed the message on to her husband. Her unchallenged evidence was that Dr Robertson "expected Peter to drop everything if he needed something done"[1] and that if she did not pass the message on "he is going to keep ringing"[2]. Upon receiving the message Mr Jellicoe got out of bed and immediately returned to Dr Robertson's property. He completed the task requested of him and was in the process of returning home when he was involved in a motor vehicle accident, which tragically caused his death. Mrs Jellicoe had become concerned about her husband and went to look for him about an hour or so after he had left. She found him about 100 metres from their home.
9 The appeal arises out of a claim by Mrs Jellicoe seeking compensation pursuant to the Act on account of her late husband's death.
10 The learned Deputy President found:-
"There seems to me to be no doubt that Mr Jellicoe was complying with Dr Robertson's instruction when he set off from home that evening."[3]
"Although in this case Mr Jellicoe was returning home from work, it could be argued that the return journey was consequential to his attendance to the minor emergency that had arisen from the farm that evening."[4]
12 She then made reference to Mason v State of South Australia (Department of Education, Training and Employment) where Deputy President Judge McCusker said:-
"I have considered whether the trip to the terminus at the start of the day could be covered for injuries but the trip from the terminus to home not covered. There is an inherent anomaly in such a conclusion. The better conclusion is that if either satisfies the requirements then both do."[5]
"In my view from the time he left his home until the time of his accident Mr Jellicoe was engaged in the performance of his contract of service. The journey to and from the farm is part and parcel of the recall to work by Dr Robertson. Mr Jellicoe undertook the journey in the course of carrying out his duties of employment."[6]
Submissions on appeal
14 The appellant, the WorkCover Corporation, contends that the learned Deputy President erred in reaching these conclusions.
15 Mr Stanley QC, counsel for the appellant, submitted that the learned Deputy President erred in two ways. He said that she should not have found that Mr Jellicoe's journey to work on the evening of 5 February 2004 formed part of his duties of employment. Mr Stanley took us to the decision of the House of Lords in Smith v Stages[7] and in particular to the judgment of Lord Lowry where his Lordship said:-
"The paramount rule is that an employee travelling on the highway will be acting in the course of his employment if, and only if, he is at the material time going about his employer's business. One must not confuse the duty to turn up for one's work with the concept of already being 'on duty' while travelling to it."[8]
16 He submitted that in driving himself to work on the evening of 5 February 2004 Mr Jellicoe was doing no more that complying with his duty to turn up for work and was not then "on duty".
17 Next he said that even if that conclusion was wrong it could not follow that when Mr Jellicoe was travelling from Dr Robertson's farm back to his place of residence he was undertaking his duties of employment.
18 Mr Stanley submitted that once Mr Jellicoe had completed his work at the farmhouse, he was free to do as he wished and Dr Robertson had no interest in what he did. He therefore was not going about his employer's business.
19 Mr Stanley contended that the evidence could not support the conclusion reached and the appeal should be allowed and WorkCover's rejection of the claim should be upheld.
Consideration
20 Mr Stanley's argument concerning Mr Jellicoe's journey to Dr Robertson's property fails to recognise the importance of looking at the factual features as a whole and to view the journey in context.[9]
21 The evidence clearly established that there was an expectation that Mr Jellicoe would from time to time be required to return to Dr Robertson's property outside of hours. In other words it was part of his job.
22 Based upon Mrs Jellicoe's unchallenged evidence about Dr Robertson expecting Mr Jellicoe to drop everything when he called and that he would have kept ringing if she had not passed on the message, compelled the inference that Dr Robertson expected Mr Jellicoe to respond immediately upon being requested to return to his property on 5 February 2004. It also compelled the inference that if Mr Jellicoe had delayed in responding to that request, Dr Robertson would have tried to contact Mr Jellicoe and would have directed him to attend his premises immediately.
23 Thus, in responding promptly to Dr Robertson's request, which is what Mr Jellicoe did in transporting himself to Dr Robertson's property immediately upon having been requested to do so, Mr Jellicoe was going about his employer's business. He was not simply turning up for work. Getting there immediately was part of the job. Thus the finding that he was then carrying out his duties of employment was correct.
24 However that finding was not determinative of the issue before the Tribunal. We agree with Mr Stanley's argument that just because the journey from or to home was undertaken in the course of carrying out duties of employment the return journey must be of the same character.[10]
25 To be compensable the return journey has to satisfy the same test as the initial journey. But the circumstances surrounding the initial journey are nevertheless important factors to be taken into account in characterising the return journey. As Doyle CJ said in TransAdelaide v Karanicos:-
"...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."[11]
26 The learned Chief Justice also said that the issue has to be approached in a common sense and practicable manner and that duties of employment can include matters reasonably incidental to the compliance with the employer's instructions.
27 The evidence establishes that the return journey was undertaken immediately after the work was completed. It was a short journey on a country road that directly connected Mr Jellicoe's home to Dr Robertson's property. It was undertaken within an hour or so after Mr Jellicoe left his home. All of these are relevant factors and they have to be considered together with the circumstances surrounding the initial journey, which as we noted, had to be undertaken immediately upon Mr Jellicoe being notified that he was required.
28 When viewed in context, the only reasonable conclusion that could have been reached was that there was a sufficient connection between the employment and the return journey to conclude that in undertaking it Mr Jellicoe was carrying out his duties of employment.
29 On the evidence presented the learned Deputy President was entitled to reach the conclusion that she did. The appeal should be dismissed.
[3] Jellicoe v WorkCover/QBE Workers Compensation (SA) Limited (RP & LJ Robertson) [2006] SAWCT 10 at para 15.
[5] [2002] SAWCT 22 at para 38.
[6] Jellicoe v Robertson at para 21_._
[8] [1989] 1 AC 928 at 955.
[9] See for example: Nacollas v Insurance Office [1985] 1 All ER 833 at 840; Rapson v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (F Westphal Nominees Pty Ltd) [2007] SAWCT 46 at para 36 & Department of Education & Children's Services v Wright [2007] SAWCT 52.
[10] We are mindful that Smith v Stages at 956 Lord Lowry said the "Return journeys are to be treated on the same footing as outward journeys". However that observation was obiter and with great respect as a proposition it is too broad. As always, each case turns on its facts and on this issue, as was noted in Rapson at para 36, the factual picture must be looked at as a whole and "the addition or subtraction of one factor in a given situation may well tip the balance".
[11] unreported, Supreme Court of South Australia, judgment no S6417 of 1997.
WorkCover/EML (RP and LJ Robertson)
Jellicoe [2007] SAWCT 59