Cannon and Department of Veterans' Affairs as Delegate for Comcare

[2002] AATA 687

DECISION AND REASONS FOR DECISION [2002] AATA 687

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1617

GENERAL ADMINISTRATIVE DIVISION        )          
           Re      ROBERT CANNON           
  Applicant
           And    DEPARTMENT OF VETERANS' AFFAIRS AS DELEGATE FOR COMCARE     
  Respondent

DECISION

Tribunal       Ms N Bell     

Date14 August 2002 

PlaceSydney

Decision      The Tribunal affirms the decision under review.

[SGD] Ms N Bell, Member

CATCHWORDS
COMPENSATION - motor vehicle accident - arising out of or in the course of employment - travel between "place of residence" and "place of work" - ordinary recess in employment - decision affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 37
Safety, Rehabilitation and Compensation Act 1988 s 6(1)

CASE LAW
Re O'Dea and Comcare (1996) 45 ALD 643; (1996) 24 AAR 325
Comcare Australia (Defence) v O'Dea (1998) 87 FCR 451; (1998) 28 AAR 119
Re Lockley and Commonwealth of Australia (1985) 7 ALD 379
Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473

REASONS FOR DECISION

Ms N Bell     

1. This is an application by Mr Robert Cannon ("the Applicant") for review of the decision dated 7 May 1998 of a delegate of the Department of Veterans' Affairs as delegate for Comcare ("the Respondent") to affirm, after reconsideration, an initial determination dated 16 January 1998 that the Respondent was not liable to pay compensation to the Applicant under the provisions of the Safety, Rehabilitationand Compensation Act 1988 ("the Act").

2. The Applicant appeared on his own behalf and gave oral evidence to the Tribunal.  The Respondent was represented by Mr Colin Hall, solicitor.  The following documentary evidence was before the Tribunal.

Exhibit           Document     Date   
TD1 T1-T35 pp1-61 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 ("T- documents")       
A1      Applicant's statement (Letter to AAT)      8 March 2002           
A2      Statement from Jeffrey Bryan Stuart Jnr 27 March 2002        

Background

1. It is not in dispute that the Applicant joined the Royal Australian Navy ("the RAN") in 1972 at the age of 18 years and was discharged from the RAN on 9 August 2000 after attaining the rank of Leading Seaman.  It is also not in dispute that the Applicant, on 22 December 1994 was injured in a motor vehicle accident whilst travelling between Cootamundra and the HMAS Tobruk which was anchored at Sydney Harbour.  The Applicant had been on annual leave from 8 December 1994 and had travelled by private car to his father's house in Port Hughes, South Australia, having stopped on the way to stay overnight at his daughter's grandmother's house at Cootamundra.  On the way back from South Australia to the HMAS Tobruk, the Applicant made a similar overnight stop at Cootamundra and then headed for Sydney. His accident took place on this last leg of his journey.
   Issues

2. The issue to be considered by the Tribunal is whether the Applicant's injury from his motor vehicle accident arose out of or in the course of his employment. Section 6(1) of the Act provides relevantly:

   "Injury arising out of or in the course of employment

   6. (1) Without limiting the circumstances in which an injury to an
   employee may be treated as having arisen out of, or in the course
   of, his or her employment, an injury shall, for the purposes of this
   Act, be treated as having so arisen if it was sustained:

   …

   (b) while the employee:

   (i) was at his or her place of work, for the purposes of that
   employment, or was temporarily absent from that place during an
   ordinary recess in that employment;

   (ii) was travelling between his or her place of residence and
   place of work, other than during an ordinary recess in that
   employment;

   (iii) was travelling between the place where he or she normally
   resides and another place, being a place where he or she resides
   temporarily, as a matter of necessity or convenience, for the
   purposes of his or her employment;

   …"

3. The more specific issue for the Tribunal to consider is, therefore, whether the Applicant's accident, and therefore his injuries, took place in any of the circumstances provided for in section 6(1)(b)(i), (ii) or (iii).
   Applicant's evidence

4. The Applicant confirmed as correct the contents of his statement of 8 March 2002.  He told the Tribunal that he had taken a posting on the HMAS Tobruk in 1994 and that from that time he lived on or near the ship.  He said he had been living in a house owned by him on the south coast of New South Wales with his wife and child, having married in 1993. He said his marriage broke down and his wife and child left the house in the middle of 1994.  The Applicant said he had purchased the house in 1986 and had lived there and rented it out at different times.  He said that when he took the posting to HMAS Tobruk he had been living in the house for a period of approximately 4 years.  He said that in 1994 most of his mail went to the house on the south coast.  He did not purchase or rent another house to live in during his posting to the HMAS Tobruk and returned to the house on the south coast after he left HMAS Tobruk after his accident.

5. The Applicant said it was his practice to visit his father in South Australia twice per year and that it was also his practice to visit his daughter in Cootamundra on the way to and on the way back from his father's house.  He said he maintained this practice during the year of his marriage.  He said his father's house in South Australia was the house where he grew up and his room in that house remained empty except when his father had guests.  He kept some of his possessions there like a stereo, pictures, souvenirs from Asia, alcohol and clothes. 

6. The Applicant said approximately one week after he took about 15 days' leave on 8 December 1994, and while he was at his father's house in South Australia, he received a telephone call from his supervisor, Petty Officer Cook Jeffrey Stuart, advising him that he was to be promoted on 30 December 1994 and posted to HMAS Perth on 16 January 1995.  The Applicant said he made a decision to return to the HMAS Tobruk a couple of days early.  In his statement, the Applicant said that he was also concerned about impending rain and gave this as one of the reasons he returned early.  When asked whether he had been ordered by his supervisor to return, he could not recall and said again that he "decided to" come back early.

7. The Applicant said he spent one night at Cootamundra on his way back to the HMAS Tobruk.  He said he had never lived in Cootamundra.
   Petty Officer Cook Jeffrey Stuart's Evidence

8. Petty Officer Cook Stuart's statutory declaration of 27 March 2002 was taken into evidence.  Petty Officer Cook Stuart was not available at the hearing for cross examination or for questioning by the Tribunal.  Mr Hall, on behalf of the Respondent, expressed his concern at the statutory declaration being admitted into evidence in those circumstances and the Tribunal, noting that concern, indicated that the lack of opportunity to cross examine or question the witness would be taken into account in deciding the weight to be given to Petty Officer Cook Stuart's evidence.

9. Petty Officer Cook Stuart's statutory declaration is to the effect that in December 1994 he was the manager of the galley on board HMAS Tobruk and that while other personnel proceeded on Christmas leave he was required to remain on board during that period.  His declaration was that at that time he was visited by two cooks from HMAS Perth wanting to see the Applicant and they informed him that the Applicant was to be posted to HMAS Perth at the end of December.  Petty Officer Cook Stuart stated in his declaration that he telephoned the Applicant at his father's house in South Australia and informed him of the posting.  The declaration then states:

   "…
   I was unable to provide any further information that was of use to ABCK Cannon due to short notice and unaware of the signal (sic). I informed ABCK Cannon to return to the ship a couple of days early to give us time to sort out any problems that were incurring due to short notice (sic).
   Later in the leave period the ship received a phone call informing that ABCK Cannon was involved in a motor vehicle accident whilst returning to the ship and was in hospital with a broken leg."

Submissions

1. The Applicant submitted that the decision under review is wrong because he had used his usual route to and from South Australia and was travelling as he had advised to the RAN.  He also submitted that his circumstances were unique in that he was both living and working on HMAS Tobruk.  He also submitted that the circumstances were unusual in that he had been told about his promotion and posting to HMAS Perth and was returning early to HMAS Tobruk.

2. Mr Hall, for the Respondent, submitted that the accident did not arise out of or occur in the course of the Applicant's employment given that the accident occurred during two discrete periods of employment, the Applicant being on voluntary authorised leave at the time of the accident and the accident not occurring during an episode or period of employment. Mr Hall also submitted that the accident did not occur in the circumstances contemplated by section 6 (1) of the Act given that the Applicant was not travelling from a place of residence to a place of work because by his own admission his place of work and his home were both the HMAS Tobruk. Mr Hall submitted that neither the Applicant's father's house in South Australia nor the house of his daughter's grandmother in Cootamundra was the Applicant's residence.

3. Mr Hall referred the Tribunal to its decision in Re O'Dea and Comcare, (1996) 45 ALD 643, the decision of the Full Federal Court in Comcare Australia (Defence) v O'Dea, (1998) 87 FCR 451 and the decision of the Tribunal in Re Lockley and Commonwealth of Australia, (1985) 7 ALD 379.
   Consideration

4. The issue for the Tribunal to consider is whether the Applicant's accident, and therefore his injuries, took place in any of the circumstances provided for in section 6(1)(b)(i), (ii) or (iii).

5. As to whether, pursuant to section 6(1)(b)(i), the Applicant sustained his injuries while he was at his place of work for the purpose of that employment, it is clear that he was not. He was travelling from his daughter's grandmother's house at Cootamundra to his place of work. As to whether, pursuant to subsection (1)(b)(i), the Applicant was at the time of his injury temporarily absent from his place of employment during an ordinary recess in that employment, it is not in dispute that the Applicant was on annual leave and that, on the Applicant's evidence, that leave was for a period of 15 days. In the Tribunal's view, an absence from employment of that duration and nature does not constitute a temporary absence during an ordinary recess in employment. In reaching this view the Tribunal had regard to the decision of Senior Member Dwyer in Re O'Dea and Comcare, (supra) where, after a discussion of the decision of the High Court in Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473, she said at 647:

   "…(13) In this matter we find that the activity of driving back to base from his parents' home did not arise directly out of or in the course of Mr O'Dea's employment. It occurred during an interval or "stand down" after the end of Mr O'Dea's normal working week. Mr O'Dea's posting to the RAEME Training Centre was for one year. The centre is within Victoria, approximately six hours drive from his home at Traralgon. We consider that is quite different from a posting to Mt Newman or Darwin. We find that the weekend trip between two working weeks at the RAEME Training Centre occurred during an interval between two discrete weekly working periods, rather than during an interlude in an episode of work. Furthermore there is no evidence that the Army took any steps to encourage Mr O'Dea's trip to Wonthaggi and Traralgon that weekend. We find that Mr O'Dea's injuries did not arise out of or in the course of his employment, unless the journey provisions in s 6 (1) of the Act apply.
   …"

1. Similarly, in this case, the Applicant's injury occurred during an interval of annual leave between two discrete periods of work and was therefore not during an ordinary recess in that employment.

2. As to whether, pursuant to section 6(1)(b)(ii) of the Act, the Applicant was travelling between his place of residence and his place of work, it was the Applicant's evidence, and his submission, that his place of residence was the same place as his place of work, that is, the HMAS Tobruk. The Applicant did not assert that his daughter's grandmother's house in Cootamundra was or had ever been his residence. However, he did give evidence of his childhood room at his father's house having been kept generally vacant and of having kept some possessions there. However, the Applicant also gave evidence, accepted by the Tribunal, of having purchased a house on the south coast of New South Wales in 1986 and having variously lived in and rented out that house. His evidence of having lived in his south coast house for four years prior to his posting to the HMAS Tobruk and of having lived there for part of that period with his wife and child leads the Tribunal to conclude that while his father's house in South Australia may have once been his residence, it ceased to be so at least four years prior to the date of injury.

3. It follows that, even if the Applicant's stopover at his daughter's grandmother's house at Cootamundra were to be disregarded, it could not be said that he was, at the time of his injury, travelling between his place of residence, or the place where he normally resides, and his place of work.

4. As to whether the Applicant, pursuant to section 6(1)(b)(iii), was travelling between the place where he normally resides and another place where he resides temporarily as a matter of necessity or convenience for the purposes of his employment, the Tribunal's conclusion that neither the Applicant's daughter's grandmother's house in Cootamundra nor his father's house in South Australia was his place of residence or the place where he normally resides, means that the Applicant's circumstances did not attract the operation of section 6(1)(b)(iii) of the Act.

5. The Applicant suggested that his journey from South Australia via Cootamundra was unusual in that he was returning early from leave because of his promotion and posting to the HMAS Perth.  The Applicant did not assert that he had been ordered to cut his leave short and return to the HMAS Tobruk and said that he "decided" to return early. The evidence of Petty Officer Cook Stuart, which the Tribunal notes was unable to be tested by cross examination, was that he "informed" the Applicant to return to the HMAS Tobruk "a couple of days early to give us time to sort out any problems that were incurring due to short notice."  The Tribunal does not consider that the evidence establishes that the Applicant was ordered to return early to work.

6. Therefore, given that the circumstances of the Applicant's injury do not come within the circumstances set out in section 6(1) of the Act, the Tribunal concludes that the Applicant's injury did not arise out of or in the course of his employment.
   Decision

7. The Tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell

Signed:         .....................................................................................
  Associate

Date of Hearing  29 July 2002
Date of Decision  14 August 2002
Representative for the Applicant   Self represented
Solicitor for the Respondent         Mr C Hall