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 a block of semi-rural land at 511 West Mt Cotton Rd on the south-eastern outskirts of Brisbane. There was a caravan situated on the property. He said he liked to go there on weekends with his son. He said it had been his regular practice to ride his motorbike to the property after work on Friday, stopping to pick up his son at Mt Gravatt en route.

7.      The applicant described himself as an experienced motorcyclist. He rode a 1000cc Suzuki bike and travelled about 15,000 km per year. He had never had a serious accident on the bike before, although he conceded he had a minor incident about 8 years before the accident in question.

8.      The applicant left his work in the city and headed for his home in Ferny Hills on his bike at around 4.50pm on 8 February 2002. The weather was fine. Mr Gardner says he intended to stop at his home in Ferny Hills to change his clothes, collect his toiletries and a few other essential items for the weekend before heading for Mr Cotton via Mt Gravatt where he would collect his son. He said he carried the items he took with him in a nap-sack. It was impossible to carry too much luggage on the bike, he said. He gave evidence that he anticipated driving into the traffic once he left home bound for Mt Gravatt and Mt Cotton, so he would have a clear run.

9.      The traffic on the way to Ferny Hills was very heavy. It was peak hour, and the traffic was slowed even further by road-works. Mr Gardner, on a bike, was able to weave in and out of the traffic to some extent and move faster than a car on the same route. He made it home in about 30 minutes, changed and packed his nap-sack. He said he was at the house less than ten minutes. Shortly after leaving the house, on the way to Mt Gravatt and Mt Cotton, he was involved in a collision where he was injured. He sustained a compound fracture of his right tibia and fibia.

The Relevant Legislation

10.     The Safety, Rehabilitation and Compensation Act 1988 (“the Act”) provides relief for eligible employees whose injures arise out of, or are sustained in the course of, employment. Section 6 elaborates on the circumstances in which an injury might be said to arise in the course of employment. Section 6(1)(b) expressly includes an injury sustained while “travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment”.. One is said to have completed one’s journey when one crosses the boundaries of the property on which the place of residence is located: s 6(1A).

11.     The expression “place of residence” is defined in s 4 to include:

“(a)the place where the employee normally resides;

(b)a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment; or

(c) any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph (a).”

12.     The applicant says he was injured on the way to his place of residence – the place of residence on that particular night being the property at Mt Cotton. He did not dispute that his place of residence was ordinarily in Ferny Hills, but argued that on weekends he lived elsewhere so the fact he stopped at Ferny Hills was irrelevant. He also denied that taking a circuitous route to Mt Cotton (going via Ferny Hills was certainly not the most direct route) did not justify invoking the exception in s 6(2).

13.     A person might have more than one place of residence: see, for example, Gregory v Deputy Federal Commissioner of Taxation (1937) 57 CLR 774 at 777 per Dixon J. The decision in Gregory dealt with an issue under the tax legislation, but there is no reason to believe the wording of s 6 of this Act, expanded as it is by s 4, should be approached any differently. That makes sense, given the development of more flexible work and domestic arrangements. It is becoming more common for couples to work in different cities and spend some nights during the week apart, for example. In such a case, it may be that at least one of the individuals has a residence in the remote location while staying there during the week, and a residence at the same address as his or her partner when residing together on other days during the week. If he or she is injured on the way to the place of residence for that particular night, the injury might well arise out of the course of employment within the meaning of s 6.

14.     If Mr Gardner had travelled from his work in the city direct to Mt Cotton where he was accustomed to spend the weekend, I could accept he was injured in the course of his employment. The fact he stopped by Mt Gravatt to collect his son would not change that analysis. But that is not what happened in this case. He travelled via his home at Ferny Hills. The respondent says his journey could no longer be characterised as a journey to his place of residence after he parked his bike outside the house at Ferny Hills.

15.     The leading authority on this point is Vetter v Lake Macquarie City Council(2001) 202 CLR 439. That case dealt with the interpretation of the journey provisions in the Workers’ Compensation Act 1987 (NSW). The applicant in that case had been injured after calling into her grandmother’s home for dinner on the way home from work. Gleeson CJ, Gummow and Callinan JJ explained (at 452):

“There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker's abode so long as the journey can be said to be a journey between the worker's place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption.”

16.     The case makes it clear that one must characterise the journey – or that portion of it which led to the accident – as a journey to or from a place of residence.  I think the journey in this case ceased being a journey to a place of residence when the applicant arrived at Ferny Hills. Although he was only there a short time, it was clearly his home base where he kept essential items, like toiletries and clothes. To put it simply, Mr Gardner had to go home before going to his weekender. It was not his employer’s concern that he travelled onwards from that place of residence to another place where he planned to spend the evening and which might, if he had travelled there more directly from work, have constituted a place of residence in its own right.

17.     For the sake of completeness, I do not accept the fact that the applicant took a more circuitous route would otherwise be a problem for the applicant. Although the applicant was travelling further by going to Mt Cotton, much of the trip after leaving Ferny Hills was against the traffic. While it would have been getting darker, the ebbing traffic would have offset any increased risk: see Re Beach and Australian Postal Commission (1982) 5 ALD 353. There would have been “no material increase in risk during or after any deviation or interruption”: see Vetter at 452.

Conclusion

18.     The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  21 November 2002
Date of Decision  2 May 2003

Counsel for the Applicant         Mr R Dickson
Solicitor for the Applicant          Standish Partners
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Dibbs Barker Gosling