Department of Health and Ageing v Buckett - [2015] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DEPARTMENT OF HEALTH AND AGEING v BUCKETT
[2015] SASC 173
Judgment of The Honourable Justice Sulan
30 October 2015
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - JOURNEY INJURIES - JOURNEY BETWEEN PLACE OF RESIDENCE AND PLACE OF EMPLOYMENT ETC - WHAT CONSTITUTES
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - OTHER MATTERS
The Department of Health & Ageing applied for permission to the Full Court from a decision of the Workers Compensation Tribunal. The respondent suffered serious injuries when travelling to the Flinders Medical Centre where he worked as a Neurological Registrar. Compensation was claimed pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) which was in force at the time of the accident. This claim was rejected by the Department on the ground that the travel to work was not in the course of carrying out official duties of employment as required by s 30(5)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA).
The respondent successfully appealed to a Deputy President of the Workers Compensation Tribunal. The Department unsuccessfully appealed that decision to the Full Bench of the Workers Compensation Tribunal. The Department now seeks permission to appeal to the Full Court.
Held, refusing permission to appeal:
1. The case raises no question of principle and is confined to its own particular facts. There is no obvious error, and the interests of justice do not require a grant of permission.
Workers Rehabilitation and Compensation Act 1986 (SA) (Repealed) s 86A, s 86A(2)(d), s 30(5), s 30(5)(a), s 30(5)(b); Return to Work Act 2014 (SA) Schedule 9; Supreme Court Civil Rules 2006 (SA) r 289(1); Occupational Health Safety and Welfare Act 1986 (SA), referred to.
Advanced Resources Pty Ltd v Charlton [2007] SASC 434, applied.
Markos v Quin Investments Pty Ltd & Anor [2011] SASCFC 98; Buckett v Department of Health and Ageing [2014] SAWCT 51; Buckett v Department of Health and Ageing [2015] SAWCT 39, considered.

DEPARTMENT OF HEALTH AND AGEING v BUCKETT
[2015] SASC 173
Civil: Application

SULAN J: The Department of Health & Ageing (“DHA”) has applied for permission to appeal to the Full Court from a decision of the Workers Compensation Tribunal (SA), pursuant to s 86A of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”) and r 289(1) of the Supreme Court Civil Rules 2006 (SA). The Act was repealed on 30 June 2015 by Schedule 9 of the Return to Work Act 2014 (SA). The Act applies to this appeal. Section 86A(2)(d) of the Act provides that permission must be obtained from a judge of the Supreme Court. Appeals are limited to questions of law.
Background
The respondent, Dr Henry Buckett (“Dr Buckett”), suffered serious injuries when travelling to the Flinders Medical Centre at Bedford Park where he worked in the Neurology Department as a Neurological Registrar. He claimed compensation pursuant to the Act in respect of injuries suffered in the accident on 6 June 2012 whilst he was travelling from his home to the Flinders Medical Centre.
His claim was rejected by the DHA, which is a self-insured employer, on the ground that the journey was not in the course of carrying out Buckett’s duties of employment, as required by s 30(5)(a) of the Act. Further, the DHA determined that there was no real and substantial connection between the employment and the accident within the meaning of s 30(5)(b) of the Act.
Section 30(5) of the Act provides:
(5)     An injury that arises out of, or in the course of, a journey arises from employment     only if—
(a)     the journey is undertaken in the course of carrying out duties of employment; or
(b)   the journey is between—
(i)    the worker's place of residence and place of employment; or
(ii)    the worker's place of residence or place of employment and—
a.     an educational institution the worker attends under the terms of         an apprenticeship or other legal obligation, or at the employer's             request or with the employer's approval; or
b.     a place the worker attends to receive a medical service, to               obtain a medical report or certificate (or to be examined for that              purpose), to participate in a rehabilitation program, or to apply         for, or receive, compensation for a compensable injury,
and there is a real and substantial connection between the employment and the       accident out of which the injury arises.
Dr Buckett appealed the decision of the DHA. The appeal was heard by a Deputy President of the Workers Compensation Tribunal, who allowed the appeal.
The background facts were not in dispute. I set them out from the decision of the Deputy President:[1]
[1] Buckett v Department of Health and Ageing [2014] SAWCT 51 at [12]-[19].
The applicant was a qualified medical practitioner working fulltime in the FMC neurosurgical ward. He would regularly participate in on call rosters on weekends or weekday nights. All on call duties for the neurosurgical ward of FMC at Bedford Park, also included on call duties at the neurosurgical ward of WCH in North Adelaide. All on calls were remote calls, meaning that when so rostered the applicant needed to be ready to deal with phone calls about patients and to attend FMC or WCH within 30 minutes of being called by either hospital. The applicant would carry a mobile phone and pager so he could be quickly contacted.
While being rostered on call over a weekday night the applicant would be paid an allowance of approximately $34. If recalled he was entitled to additional wages for time occupied as prescribed by the EA.
As the rostered on call doctor, the applicant was expected to re-examine and reassess any new patient he had seen overnight, before the end of his on call period the following morning. Fulfilment of this expectation was the established practice. The applicant did not need a specific instruction to do so because he correctly understood it was an expectation of the respondent that he would carry out that duty. He was accordingly authorised by the expectation to carry out this recall duty. The obligation was to attend at either FMC or WCH in the morning depending on where he had examined the patient overnight, and before the start of his normal day shift at FMC.
At the completion of the applicant’s normal shift on 5 June he travelled to his home at Seacliff. At about 7.30pm that night he received a call from FMC regarding Mr A, a patent then being admitted to the neurosurgical ward. In response the applicant travelled to the hospital from his home to examine and assess the patient. Mr A had signs of bleeding on the brain and was deteriorating, and so required close monitoring. There was a possibility he may need surgery on 6 June. The applicant returned home at about 11.00pm.
When the applicant ceased his normal shift at about 5.30pm on 5 June he did not then know that he would have to perform any recall duties at FMC. The need to attend between 8.00pm and 11.00pm, and before his normal shift the following morning, was solely due to Mr A being admitted after the applicant left work.
I accept the applicant’s following explanation of his intention in attending work earlier than normal on the morning of 6 June:
“Well, my intention with, for instance, the patient that I saw the night before, [Mr A], he had significant head injury and had deteriorated quite suddenly the day before [he] presented to hospital. So in his situation I needed to neurologically assess him again and make a call whether he needed to go to theatre by talking with my bosses and book that all in before I started work. So my intention was to see him at about quarter past 7, half past 7, to make my assessment which would take me about 15 minutes.”
The applicant’s intended and expected duties with respect to Mr A were not part of the normal handover process that occurred as part of his normal duties each morning. Handover commenced between 7.45 and 7.50 each morning and involved the applicant updating colleagues regarding the condition of the ward’s patients.
The applicant usually commenced work at about 7.30am by updating himself regarding patients’ conditions in preparation for handover.
On 6 June he left home earlier than normal, for the sole purpose of carrying out his obligations regarding Mr A.
The applicant’s time sheets did not accurately record all the hours of work he was required to perform, due to internal hospital pressure against accurate time recording.
[References omitted.]
The DHA appealed. The appeal was heard by the Workers Compensation Tribunal (SA) (Jennings PJ, Gilchrist DPJ and Dolphin DP) (“the Tribunal”). The Tribunal dismissed the appeal. The Tribunal concluded:[2]
Here we are concerned with a highly qualified medical practitioner who was on call and was recalled to duty the previous evening. The patient who was the subject of that recall was in a serious condition and required monitoring. Dr Buckett’s evidence demonstrates firstly, that as an employed medical practitioner he was required to exercise his clinical judgment as to the appropriate time at which to re-examine and reassess Mr A. Secondly, it shows that as a condition of his employment he was required to continue that treatment of Mr A at an appropriate time before his shift and before his usual handover tasks. In this instance the fact that the timing of that examination was marginally before handover does not change its essential character. It was not an additional handover duty. Its timing reflected Dr Buckett’s professional clinical judgment as to when that examination ought to take place.
We apply the common sense and liberal practical approach that Doyle CJ directed us to in Karanicos and Brophy. We do so by reference to contemporary conditions and contemporary understandings of the concept of the duties of employment of a medical practitioner.
When the relevant journey is viewed in the context of all the recall to duty the previous evening, its accepted purpose and its timing, it leads to the conclusion that in undertaking it Dr Buckett was carrying out his duties of employment.
Conclusion
Whilst the Deputy President erred in concluding that for the purposes of the Enterprise Agreement Dr Buckett was entitled to be paid, as part of the earlier recall in undertaking the journey in which he was injured on the morning of 6 June 2012, the evidence before him supported the ultimate conclusion he reached. The evidence demonstrated that in undertaking that journey Dr Buckett was carrying out his duties of employment. The appeal must therefore be dismissed.
[Citations omitted.]
[2] Buckett v Department of Health and Ageing [2015] SAWCT 39 at [35]-[38].
The application for permission to appeal
The DHA seeks permission to appeal from the decision of the Tribunal. The grounds of appeal are:
-    The learned Full Bench erred in law in construing the applicant’s journey as having been undertaken in the course of carrying out duties of employment.
-    The learned Full Bench erred in law in conflating the requirement for a journey at a particular time with a journey undertaken in the course of carrying out duties of employment.
-    The learned Full Bench erred in law in conflating a duty to turn up for work early with the concept of being on duty while travelling to work.
Counsel for DHA sought to identify the error of law as being the conclusion that, in undertaking the relevant journey, Dr Buckett was carrying out his duties of employment. Counsel accepts that Dr Buckett had made a clinical judgment to go to work 15 minutes earlier than required for the purpose of examining the patient to whom he had attended the night before, but he submits that, in so doing, Dr Buckett was travelling to work in his own time. He submits that, in travelling when he did, Dr Buckett was not subject to the Flinders Medical Centre’s control or direction.
In response, counsel for Dr Buckett submits that, for permission to be granted, the Court must be satisfied that the grounds of appeal raise a new issue of principle, or that they raise an issue or issues out of the ordinary. Counsel submits that there is no new issue of principle in the case at bar. He submits the decision is confined to its own particular facts. Four members of the specialist Tribunal have considered the matter and are unanimously of the same view. There is no obvious error. Counsel contends that DHA have not identified a question of law. The Tribunal was simply applying recognised principles to the facts of this case. The issue in the case was: How should the journey be characterised?
Consideration
In considering whether to grant permission, I have had regard to the test applied by the Full Court in Advanced Resources Pty Ltd v Charlton in which the Court observed:[3]
The decision of the Full Court of the Industrial Relations Court was, as we have already said, a decision that, having regard to the facts of the case, Mr Charlton was an independent contractor to Advance, and not an employee.
The decision of the Full Court of the Industrial Relations Court involved the application of well-established principles. As is always the case in such matters, it was a matter of applying those principles to the facts of the particular case.
That same issue had been considered, on the same facts, by an Industrial Magistrate and by a single Judge.
The reasons of the Full Court of the Industrial Relations Court are thorough. Each member of the Court has considered the relevant principles, and their application so the facts ...
[3] [2007] SASC 434 at [23]-[26].
In Markos v Quin Investments Pty Ltd & Anor,[4] Doyle CJ considered an application for permission to appeal from the Full Court of the Industrial Court in respect of convictions upheld for offences against the Occupational Health Safety and Welfare Act 1986 (SA). Three employees of one of the respondents were killed in an explosion at a manufacturing facility. Doyle CJ, with whom Peek J agreed, observed:[5]
Although the applicant asserts that his application raises an issue of principle as to the approach to be taken by a court of appeal in relation to findings of fact, the summary of argument indicates that those submissions are but another way of putting the submission that the Full Court erred.
The applicant asserts that there is a public interest in the findings in this matter, bearing in mind the seriousness of the explosion and bearing in mind its consequences. That is correct, but it can also be said that there is always a public interest in sound findings of fact being made when the issue is workplace safety.
The applicant points to the fact that in this matter the Industrial Court is exercising a criminal jurisdiction. That also is correct, but does not add any particular weight to the applicant’s case.
On the other hand, it can be said that in providing that an appeal lies to the Supreme Court in a case like this only if permission to appeal is granted, Parliament obviously intended that this Court should determine when it is appropriate to grant permission to bring an appeal. It has been the practice of this Court not to grant permission to appeal, when the grant of permission would result in no more than a re-examination of facts, already considered once at the appellate level. That is not a hard and fast rule, because at the end of the day the issue for the Full Court must always be whether it is in the interests of justice to grant permission to appeal. But while it is not a hard and fast rule, it is a sound guiding principle.
[4] [2011] SASCFC 98.
[5] [2011] SASCFC 98 at [13-[16].
There are factors to which counsel for the DHA refers which support the application. However, those factors are outweighed by the factors which support a refusal of permission to appeal.
Ultimately, this case is an application of well-settled principles. There will always be debate and disagreement about the application of factual situations to the principles. This is a case where there may be differences of opinion about the application of those principles. However, that is not a reason on its own to grant permission. This case turns on its own factual circumstances. It raises no question of principle and it is confined to its particular facts. In my view, the interests of justice do not require a grant of permission. There is no obvious error.
I would refuse permission to appeal.