Workcover/Mercantile Mutual (Savas) v Russo [2000] SAWCT 23

4 Mr Luke, for the appellant, submitted that the learned Deputy President had incorrectly approached the determination of whether what the respondent did at the time (leaving his taxi cab and walking to a shop to buy some lunch) constituted a journey within s 30(5) of the Act. The learned Deputy President had said "The issue then arises as to whether the worker's movements in leaving the taxi cab and proceeding to the delicatessen in the Cosmos Shopping Centre, amounts to a journey. I made the point in Paparella (supra) [Paparella v WorkCover Corporation/GIO Australia Workers Compensation (SA) Ltd (Kangaroo Island Ferries Pty Ltd) JD57/1998] `that this is very much a matter of impression'." Mr Luke contended that in stating that it was a matter of impression, the learned Deputy President had erred in law. It was, Mr Luke said, "A question of investigating the duties of employment in order to determine whether the worker is at the place of employment or whether the worker has left the place of employment and is travelling to another definite place at some distance." (tr 6). Having left his taxi cab, Mr Luke said, the worker had left his place of employment as the purpose of his mission, to buy his lunch, had nothing to do with him carrying out his duties of employment, nor was it incidental to him carrying out those duties.

5 Mr Possingham, for the respondent, contended that the learned Deputy President had not erred in his approach to the issue, that his conclusion was open on the evidence, was a matter of fact and degree and therefore did not involve a point of law.

6 It is appropriate to refer to the learned Deputy President's reasoning behind his conclusion. He first contemplated whether a worker whose employment required him to be constantly on the move should be regarded as constantly on a journey for the purposes of s 30(5). He said, at 5:-

"It would be odd if that were so because it would discriminate against such workers by limiting their access to the Act when there is no obvious reason why Parliament would intend to do so. It is one thing to isolate travelling away from the workplace and to treat such travel differently than activities undertaken at the workplace in respect of the scope of cover under the Act. It is another thing altogether to discriminate against a class of workers because their employment happens to involve continuous travel.

This leads me to conclude that such travel was not intended to be caught by section 30(5) such that ordinarily, a person whose job it is to travel about would not be regarded, whilst embarking upon such travel, to be on a journey for the purposes of the Act. If that person had finished for the day and was proceeding to travel to his or her home, that would be another thing altogether. But here, as the worker was `on the job', I would not regard his presence in the taxicab on the day of the fall, as indicating that he was in the course of a journey."

7 Having concluded that, the learned Deputy President then went on to say:-

"The issue then arises as to whether the worker's movements in leaving the taxicab and proceeding to the delicatessen in the Cosmos Shopping Centre, amounts to a journey. I made the point in Paparella (supra) `that this is very much a matter of impression'. At one extreme, if the worker had parked his car and walked a distance of a few metres to sit on an adjacent park bench, and consumed some food that he had taken with him, I do not think that anyone would seriously suggest that in covering that distance, the worker was embarking upon a journey. On the other hand, if he had stopped his vehicle, with the intention of breaking for an extended period of time, had walked a distance and then caught a bus to a distant location with the intention of returning an hour or so later, one might far more readily come to the conclusion that in embarking upon that activity, the worker was involved in a journey as contemplated by section 30(5). In this instance, the worker was intending to traverse a distance of about 80 or so metres. He contemplated that he would be able to traverse the distance, purchase and consume food and be back in his taxi in sufficient time to drive to and collect a customer in under ten or so minutes. Applying what I hope to be a practical and common sense approach to this situation I do not think that he was involved in a journey for the purposes of section 30(5) at that time."

8 Mr Luke, ultimately, did not take issue with the conclusions the learned Deputy President reached with respect to his two examples. However, he suggested that a different conclusion was required in the first stated example if instead of eating food that he had brought with him the driver had purchased his lunch from a nearby shop. If he was eating his own food he had done no more than comply with his employer's instruction that he eat outside his vehicle and so had not left his place of employment. However, if he had to go to a nearby shop to buy his lunch, Mr Luke said, he would have left his place of employment and commenced a journey. A distinction was to be drawn, Mr Luke said, by reference to the worker's intention - was it to eat food or was it to purchase food to eat. Moreover, if the driver purchased his lunch and then returned "to the reasonable environs of his cab" to consume the food, he would, Mr Luke said, be taken to have returned to his place of employment.

9 This appeal, limited as it is to questions of law, can only succeed if the established facts lead inevitably to the conclusion that the worker was on a journey for the purposes of s 30(5) of the Act at the time of his injury. It is not enough for the appellant to show that the established facts could lead to this conclusion, for that would not show that the learned Deputy President's contrary conclusion was erroneous in law. If it is a question of evaluation or degree, there can be no error of law: WorkCover/MMI Workers Compensation (SA) Ltd (Ballestrin Concrete Construction Pty Ltd) v Gianfranco Giocondo Zanini JD125/1999 and the cases cited therein.

10 This is, we think, all that the learned Deputy President was referring to when he said that the determination of the issue was "very much a matter of impression". He might otherwise have said that it is a question of evaluation or degree in every case, or a question upon which different minds might take different views. That it is reasonably possible to arrive at a different conclusion, however, is of no avail to the appellant, because in such circumstances it cannot be said that the decision appealed from is erroneous in point of law.

11 The conclusion reached by the learned Deputy President was one clearly open to him on the evidence. It cannot be said to have resulted from a misdirection or misapplication of the relevant legal principles. That being so, no question of law arises.