Gardner v Comcare

[2003] FCA 1278

FEDERAL COURT OF AUSTRALIA

Gardner v Comcare [2003] FCA 1278

WORKERS COMPENSATION – whether applicant’s injury occurred in the course of his employment – meaning of “place of residence” and “journey” – whether journey from place of employment to normal place of residence, and then a little later to weekend place of residence,  travel from place of work to place of residence

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Safety Rehabilitation and Compensation Act 1988 (Cth), s 6(1)(b)(ii) and (iii)
Workers Compensation Act 1987 (NSW)

Vetter v Lake Macquarie City Council (2001) 202 CLR 439 followed
Hope v Bathurst City Council (1980) 144 CLR 1 cited
Gregory v Deputy Commissioner of Taxation (1937) 57 CLR 774 cited

RUSSELL GARDNER v COMCARE AUSTRALIA

No Q 77 of 2003

SPENDER J
BRISBANE
11 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 77 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	RUSSELL GARDNER APPLICANT
AND:	COMCARE AUSTRALIA RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	11 NOVEMBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 77 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	RUSSELL GARDNER APPLICANT
AND:	COMCARE AUSTRALIA RESPONDENT

JUDGE:	SPENDER J
DATE:	11 NOVEMBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This application is an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) from the decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 2 May 2003. The Tribunal’s decision affirmed a decision by Comcare Australia (‘Comcare’) that an injury suffered by Mr Gardner after he had concluded work on Friday 8 February 2002 did not arise in the course of his employment. Thus Comcare was not liable to compensate Mr Gardner for the injury.

2. The appeal depends on the correct application of the “journey” provisions in the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’).

3. The Act provides compensation for employees where an injury to the employee arises out of, and in the course of, his or her employment by the Commonwealth. 

4. Section 6 of the Act expands the entitlement of an employee for injury sustained in the course of employment to, relevantly, the circumstance that the injury was sustained while the employee “was travelling between his or her place of residence and place of work other than during an ordinary recess in that employment” (s 6(1)(b)(ii) of the Act), or if the injury was sustained while the employee “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 purpose of his or her employment” (s 6(1)(b)(iii) of the Act).  The contention of the applicant, Mr Gardner, is that when he was injured on the evening of 8 February 2002, he was travelling between his place of work and his place of residence, within s 6(1)(b)(ii).

5. Section 6(1A)of the Act, which deals with the commencement and completion of a journey between a place of work and a place of residence, in effect provides that the journey commences or finishes when one crosses the boundary of the property of the place of residence.  This subsection is directed at denying liability for injury which occurs on the place of residence: this subsection has no relevance to the present circumstances. 

6. The expression “place of residence” is defined in s 4 of the Act as meaning:

   ‘(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 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).’

7. Subsection 6(2) relevantly prevents the application of subparagraph 6(1)(b)(ii) or 6(1)(b)(iii) where the travel:

   ‘(a)was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or

   (b)was interrupted in a way that substantially increased the risk of sustaining an injury.’

   It is against this legislative background that the entitlement of Mr Gardner to compensation in the circumstances that obtained on the evening of 8 February 2002 fall to be determined.

8. Comcare conceded that the question of whether, on the facts as found by the Tribunal, the property at Mount Cotton where the appellant proposed to spend the Friday evening was his “place of residence” for the purposes of subparagraph 6(1)(b)(ii) or not, was a question of law.  Comcare accepted that that question was not merely factual because it depended, inter alia, upon the construction and application of the definition of the expression “place of residence”.   Mr Robert Gotterson QC, senior counsel for Comcare, referred to Vetter v Lake Macquarie City Council (2000) 202 CLR 439 (‘Vetter’) at par 25, citing Hope v Bathurst City Council (1980) 144 CLR 1 at 7 with approval, as authority for this concession.

   Factual Background

9. The factual circumstances found by the Tribunal were as follows. 

10. Mr Gardner was injured in a motor cycle accident after work on Friday 8 February 2002, sustaining a serious leg injury in the accident.  Mr Gardner was employed by NDC Ltd, a subsidiary of Telstra Corporation Ltd, and worked out of the premises of NDC Ltd in Brisbane city.  Mr Gardner was born on 31 August 1959.  He separated from his wife in 2001.  At the time of the accident he was living at 54 Kylie Avenue, Ferny Hills, a suburb of Brisbane situated about sixteen or seventeen kilometres north-west of the central business district.  He shared the house at Ferny Hills with another person who was the godfather to Mr Gardner’s son, Scott, who was aged fourteen at the time of the decision of the Tribunal.  Scott lived with his mother at Mount Gravatt, but Mr Gardner had an informal access arrangement in place under which he would spend most weekends with his son, and school holidays.  Mr Gardner had a block of semi-rural land at 511 West Mount Cotton Road, which is situated on the south-eastern outskirts of Brisbane.  There was a caravan situated on the property.  Mr Gardner had told the Tribunal that ‘he liked to go there on weekends with his son’, and that ‘it had been his regular practice to ride his motor bike to the property after work on Friday, stopping to pick up his son at Mount Gravatt en route.’ 

11. The Tribunal said that on the day of the accident, Mr Gardner:

    ‘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.’

12. The Tribunal found that Mr Gardner left his work in the city and headed for his home in Ferny Hills on his bike at around 4.50 pm on 8 February 2002.  The Tribunal said:

    ‘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 Mt Cotton via Mt Gravatt where he would collect his son.  He said he carried the items he took with him in a knap-sack.  It was impossible to carry too much luggage on the bike, he said.’

13. Mr Gardner, having left the Brisbane city district, reached “home” at Ferny Hills in about thirty minutes, where he changed and packed his knapsack.  He was at the Ferny Hills house for less than ten minutes.  He anticipated driving to Mount Gravatt to pick up his son, then to Mount Cotton where he intended to spend the night as he normally did.   From the city to his Ferny Hills house was about seventeen kilometres north-west of the city.  The Mount Cotton property is south-east of the city, and the distance from the Ferny Hills house to the Mount Cotton property is about fifty-one kilometres, generally in a direction from the north-west to the south-east of the city.  Shortly after leaving the house on his way to Mount Gravatt, he was involved in a collision, sustaining a compound fracture of his right tibia and fibia.

14. The Tribunal found that a person might have more than one place of residence, citing Gregory v Deputy Commissioner of Taxation (1937) 57 CLR 774 at 777 per Dixon J. The Tribunal accepted that it is not uncommon for couples to work in different cities and spend some nights during the week apart. In such a case, the Tribunal said, it may be that at least one of the individuals has a residence in a 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.

15. The Tribunal said:

    ‘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 the Tribunal concluded:

    ‘… that is not what happened in this case.  He travelled via his home at Ferny Hills.’

16. The Tribunal expressed its determination in the following way:

    ‘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. The Tribunal expressed the conclusion that the fact that Mr Gardner took a more circuitous route would not otherwise be a problem for the applicant.  The Tribunal concluded:

    ‘There would have been “no material increase in risk during or after any deviation or interruption”.’

18. Both parties to this application referred to the judgment of the High Court in Vetter, a case concerned with the “journey” provisions of the Workers Compensation Act 1987 (NSW). In Vetter, the applicant had been injured after calling into her grandmother’s home for dinner on the way home from work.  Those facts are to be contrasted with the present, where Mr Gardner had travelled from work to the place where he normally resided during the week, changed from his work clothes and collected some articles, and was in the process of travelling to his Mount Cotton property where he normally resided on the weekend, or at least on Friday evenings.

19. In the New South Wales Court of Appeal, when considering Vetter, Priestley JA had said that it was possible to characterise Ms Vetter’s visit to her grandmother as ‘going to see her grandmother on her way home’ just as easily as ‘making a trip to her grandmother’s and then making a second trip to home from there.’  In the High Court, at par 28, Gleeson CJ, Gummow and Callinan JJ had this to say of Priestley JA’s observation:

    ‘We agree with his Honour, that it is possible to characterise the appellant’s travel in the former way but not that the matter is to be decided by asking whether there were one or two journeys.’

    Their Honours continued:

    ‘The appellant’s real destination was her own residence.  She always intended to spend the night at her own residence.  As Mahoney JA said in Minchinton v Homfray (1994) 10 NSWCCR 778 at 785:

    “The term ‘journey’ used in the relevant sense, has an indeterminate meaning or meanings.  In the Shorter Oxford English Dictionary, the relevant meanings are: ‘a day’s travel; the distance travelled in a day or a specified number of days …; a spell of going or travelling, viewed as a distinct whole; an excursion or expedition to some distance; a round of travel …’

    Having regard to the statutory reference to ‘interruption or duration’, the relevant meaning for present purposes is, I think: ‘a spell of going or travelling, viewed as a distinct whole’.”

    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.  That is what the Act requires.  Any question whether that requirement has been satisfied is not to be answered by posing and answering a different question altogether and of the kind posed by the Court of Appeal, was the appellant engaged in one or more journeys (Vetter (1999) 18 NSWCCR 34 at 37-41 [6]–[19], per Handley JA; at 48-49 [44]-[50], per Priestley JA.’

20. I think it correct to say that Mr Gardner’s ultimate destination after work on Friday 8 February 2002 was his Mount Cotton property.  The Tribunal recognised that if Mr Gardner had not gone to his place of residence at Ferny Hills, got changed and collected some items and then proceeded to Mount Cotton, it would be possible to characterise his journey as one between his place of work and place of abode.  Does the fact that he went to the Ferny Hills property where he normally resided during the week, changed from his work clothes and collected other items and then set off for Mount Cotton, change the characterisation of the journey?  

21. As Kirby J noted in Vetter at par 85:

    ‘[The] Act is intended to apply to the employment journeys of workers in a great variety of employment and domestic situations.  It provides a valuable benefit to such workers.  This benefit should not be narrowly construed nor confined to journeys in which the employer has some direct or notional interest.’

22. Hayne J noted in Vetter at par 109:

    ‘The question to be answered is that posed by the statute – whether the worker was on a daily or other periodic journey between his or her place of abode and place of employment when injured.’

23. In the terms of the Commonwealth Act applicable in the present circumstances, the question is whether Mr Gardner was injured while he was travelling between his place of work and his place of residence.  It may be accepted that Mr Gardiner had two places of residence.  The Tribunal regarded the travel by Mr Gardner from his place of work to Ferny Hills as determinative of the question.  The Tribunal’s characterisation of Mr Gardner’s travel was:

    ‘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.’ 

24. I do not know if Mr Gardner “had” to go home.  The fact is that he did go to his house at Ferny Hills before heading off to his weekender. In my opinion that factual characterisation was one which was open to the Tribunal, and in so concluding, the Tribunal made no error of law justifying this Court in interfering with its conclusion.  The geographical fact that the Ferny Hills house was about seventeen kilometres north-east of the city, and the Mount Cotton property a considerably longer distance south-east of the city, is consistent with the finding of the Tribunal.

25. For the above reasons the appeal is dismissed.   I will hear the parties on costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:            11 November 2003

Counsel for the Applicant:	Mr Ross Dickson
Solicitor for the Applicant:	Campbell Standish Partners
Counsel for the Respondent:	Mr Robert Gotterson QC, with Mr Charles Clark
Solicitor for the Respondent:	Dibbs Barker Gosling Lawyers
Date of Hearing:	21 October 2003
Date of Judgment:	11 November 2003