Gardner and Comcare - [2003] AATA 404

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 404
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/524

GENERAL ADMINISTRATIVE DIVISION )

Re RUSSELL GARDNER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr B J McCabe, Member
Date2 May 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
(Sgd) B J McCabe
Member

CATCHWORDS
WORKERS’ COMPENSATION – injury arising from a motor cycle accident whilst travelling home – applicant travelled to his principal home before travelling to his weekend residence – whether applicant’s injury occurred in the course of employment – meaning of “place of residence” and “journey” – whether journey from place of employment to place of residence had been completed before the accident occurred
Safety Rehabilitation and Compensation Act 1988
Gregory v Deputy Federal Commissioner of Taxation (1937) 57 CLR 774
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Re Beach and Australian Postal Commission (1982) 5 ALD 353
REASONS FOR DECISION

2 May 2003 Mr B J McCabe, Member

Introduction
1.      Russell Gardner, the applicant, was injured in a motor cycle accident after work on Friday, 8 February 2002. Mr Gardner sustained a serious leg injury in the accident. He had stopped off at his usual home before the accident to collect some belongings for the weekend before heading off to the block of land where he spent most weekends.
2.      Comcare decided Mr Gardner’s injury did not arise in the course of his employment, so it was not liable to compensate him for the injury. Comcare relied in particular on the definition of “place of residence” in s 4 and the “journey” provisions in s 6 of the Safety, Rehabilitation and Compensation Act 1988.. The applicant says he is covered by those provisions.
The Material before the Tribunal
3. The Tribunal was provided with the material required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with road maps showing Mr Gardner’s route on the night in question. Mr Gardner provided a statement and gave evidence at the hearing. Mr Dickson appeared on behalf of the applicant. Mr Clark appeared on behalf of Comcare.
The Facts
4.      Mr Gardner was employed as a Technical Officer – Work Team Leader at NDC Ltd (“NDC”). NDC is a subsidiary of Telstra Corporation Ltd. The applicant worked out of NDC’s premises in Brisbane city.
5.      The applicant was born on 31 August 1959. He separated from his wife in 2001. He was living at 54 Kylie Avenue, Ferny Hills at the time of the accident. Ferny Hills is situated about 16-17 kilometres north-west of the central business district. He shared the house with another person who was godfather to the applicant’s son, Scott. Scott was aged 14 at the time of the hearing. Scott lived with his mother at Mt Gravatt but the applicant had an informal access arrangement in place under which he would spend most weekends with his son, and school holidays.
6.      Mr Gardner had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gardner and Comcare

Details

AGLC: Gardner and Comcare [2003] AATA 404
Case: [2003] AATA 404
Decision Date: 2 May 2003

CaseChat Overview and Summary

The applicant in this case, Mr Gardner, sought workers’ compensation for injuries sustained in a motor cycle accident on his way home from work. The dispute centred around whether Mr Gardner’s journey had been completed at the point of the accident, thus determining if the injury occurred in the course of his employment. The case was heard by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were the interpretation of the terms “place of residence” and “journey” under the Safety Rehabilitation and Compensation Act 1988, and whether Mr Gardner’s commute from his workplace to his primary residence was considered a completed journey. The Tribunal had to ascertain if the injury happened during a journey from a place of employment to a place of residence, which would entitle Mr Gardner to compensation. The relevant case law, including Gregory v Deputy Federal Commissioner of Taxation, Vetter v Lake Macquarie City Council, and Re Beach and Australian Postal Commission, provided guidance on these definitions and concepts.

The Tribunal found that Mr Gardner’s primary residence was his principal home, not his weekend residence where he was commuting to at the time of the accident. It was determined that the journey from his workplace to his primary home had been completed, and the subsequent journey to his weekend residence constituted a new journey. Thus, the Tribunal concluded that the accident did not occur during a journey from a place of employment to a place of residence, and Mr Gardner’s claim for workers’ compensation was denied. The Tribunal upheld the decision under review.

The final order of the Tribunal was to affirm the decision denying Mr Gardner’s claim for workers’ compensation.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		RUSSELL GARDNER