Green v Secretary, Department of Education and Communities - [2014] NSWWCCPD 71

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Green v Secretary, Department of Education and Communities [2014] NSWWCCPD 71
APPELLANT:	Catherine Green
RESPONDENT:	Secretary, Department of Education and Communities
INSURER:	Allianz Australia Insurance Ltd
FILE NUMBER:	A1-1237/14
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:	5 August 2014
DATE OF APPEAL DECISION:	27 October 2014
SUBJECT MATTER OF DECISION:	Journey claim; meaning of “place of employment”; s 10 Workers Compensation Act 1987; whether journey completed when worker crosses boundary of the land on which the workplace is situated; application of principles in Chawla v Transgrid, Burke ACCJ, unreported, Compensation Court of NSW, 11 June 2002
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	W G McNally Jones Staff
Respondent:	Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 5 August 2014 is revoked and the matter remitted to a different Arbitrator for determination of all outstanding issues. 2. No order as to costs.

INTRODUCTION

This appeal concerns the journey provisions in s 10 of the Workers Compensation Act 1987 (the 1987 Act). Specifically, it concerns the meaning of “place of employment” in s 10(3)(a) and whether, when the worker crossed the boundary of the land on which her place of employment is situated, she had reached her “place of employment” and completed her journey.

BACKGROUND

The appellant worker, Catherine Green, worked, and continues to work, for the respondent employer, the Department of Education and Communities, at the ninth floor of the building (the Bankstown Civic Centre) at 66 Rickard Road, Bankstown (66 Rickard Road).
On 4 October 2013, while on her way to work from her home, Ms Green sustained injuries when she slipped and fell in the courtyard/foyer of 66 Rickard Road. The Arbitrator found that Ms Green fell “inside the boundary of the land on which the building was located in which her office was in turn situated on the 9^th floor” ([20]).
Having made that finding, which neither party has challenged on appeal, the Arbitrator said that the “legal question” to be answered was “whether this location should be regarded as within [Ms Green’s] ‘place of employment’” ([20]). She answered that question “no”. Her main reasons were:
(a)     the authorities on which Ms Green relied could all be distinguished on their facts;
(b)     the legal boundaries of the employer’s property and the boundary of the land where the place of employment is situated will not necessarily be the same and it will be a question of fact in each case ([34]);
(c)     Ms Green had not established that the whole of the area within the boundary of the land was occupied by her employer ([17] and [39]), and
(d)     she could not draw the inferences submitted on Ms Green’s behalf and she was not satisfied that Ms Green had “discharged the onus of proof in this regard” ([57]).
It followed from the Arbitrator’s reasoning that Ms Green was still on a journey when she fell and, because it was accepted that she could not establish that there was a “real and substantial connection between the employment and the accident” (s 10(3A)), her claim for weekly compensation and medical expenses failed.
Ms Green has appealed. For the reasons explained below, the appeal is successful and the Arbitrator’s determination is revoked.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) concluding that Ms Green was still on a periodic journey within the meaning of s 10 when she fell, and
(b) not accepting that the journey ended upon crossing the boundary of the land on which the respondent’s premises were located.

SUBMISSIONS

Counsel for Ms Green, Mr McManamey, submitted that the authorities concerning “place of employment”, for the purposes of s 10, agree that the journey begins and ends when the worker has crossed the boundary of the land on which is located the place where the worker performs his or her work (Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8; 23 NSWCCR 128 (Musumeci); Young v Albury & Border Pastoral, Agricultural, Horticultural & Industrial Society [1932] WCR 201 (Young); Chawla v Transgrid, Burke ACCJ, unreported, Compensation Court of NSW, 11 June 2002 (Chawla); Hogno v Fairfax Regional Printers Pty Ltd [2009] NSWWCCPD 33 (Hogno); Gray v Sydney Southwest Area Health Service (Rozelle Hospital) [2010] NSWWCCPD 125 (Gray)).
None of these authorities concerned questions of whether the employer owned the land or had control and management of the land. It was sufficient that the worker was required to perform work within the boundaries of the land. Therefore, so it was contended, the Arbitrator erred when she distinguished, on a basis that had not been relevant to the authorities, the facts of the present case from the facts of those authorities. It was also contended that the Arbitrator erred in relying on Parsons Brinckerhoff Australia Pty Ltd v Vanceva [2011] NSWWCCPD 72 (Vanceva), a case that concerned the meaning of “place of employment” in s 11, not s 10.
Counsel for the respondent, Mr Morgan, submitted that the Arbitrator properly determined that the critical factual issue pressed by Ms Green at the arbitration was not made out. He argued that none of the authorities relied on by Mr McManamey assist because each can be distinguished from the present matter. In those cases, there was no dispute about ownership of the land and no need for the worker to provide evidence “validating their assertions in relation to ownership of the property where the injuries occurred”. He said it was “fanciful” to suggest that anything turns on ownership as opposed to occupation.
Mr Morgan said that, in the present case, the burden on Ms Green “regarding the standard of proof was greater as there were clearly available inferences to be drawn, as identified by the Arbitrator, that the [r]espondent did not exercise ownership or control over the area where the injury was sustained”. The Arbitrator was not persuaded that Ms Green had discharged the evidentiary onus and, as a consequence, made a finding of fact that Ms Green had not established that, at the time she fell, she had arrived at her place of employment.
Mr Morgan contended that the Arbitrator did not err in distinguishing the earlier authorities on the basis that, in the present case, there was insufficient evidence to show that the respondent had ownership, control or management of the premises where the injury occurred. He noted that Gray was decided without reference to who owned the land or whether the employer had control and management of the entirety of the land.
Mr Morgan submitted that Ms Green was attempting to “shoehorn” the facts of the present matter into earlier decisions without acknowledging that each case will turn on its own facts. In any event, the employer in Gray, Sydney South West Area Health, is a statutory body of the New South Wales Government with “obvious links to the ownership or management of the land [where the worker was injured] through its direct connection to the State of New South Wales and can also be properly distinguished from the present case, as ownership was not in issue”.
Dealing with Vanceva, Mr Morgan argued that the Arbitrator did not adopt, as a blueprint, any definition arrived at in that case. The Arbitrator only relied on Vanceva with respect to the correct approach to take in interpreting legislation. She did not rely on it with respect to her analysis of whether Ms Green had discharged the evidentiary onus.

DISCUSSION AND FINDINGS

Section 10(1) provides that a personal injury received by a worker on a journey to which the section applies is, for the purposes of the 1987 Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. The section applies to certain specified journeys. One such journey is a daily or other periodic journey “between the worker’s place of abode and place of employment” (s 10(3)(a)).
Section 10(4) states that:
“(4) For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.”
The term “place of abode” is defined in s 10(6) to include the place where the worker has spent the night preceding a journey and from which the worker is journeying, and the place to which the worker is journeying with the intention of there spending the night following a journey. There is no definition of “place of employment” in s 10, or any other part of either the 1987 Act or the 1998 Act, and no equivalent of s 10(4) dealing with the start or finish of a journey in relation to the place of employment.
The term place of employment was defined (for all purposes of the Act) in the Workers Compensation Act 1926 (the 1926 Act) as:
“The premises, works, plant or place for the time being occupied by or under the control or management of the employer by whom the worker concerned is employed, and on or at or in connection with which the worker was employed at the time of the injury.”
This definition was generally interpreted to mean that a worker had not commenced a journey until he or she was “subjected to the risks common to the whole community in the use of public highways” (Young), or until he or she had “emerged onto the public street” (Russell v Sydney County Council [1967] 41 WCR 68 (Russell)) or had left the area under the control or management of the employer.
However, the legislature omitted this definition of place of employment from the 1987 Act and it has not been replaced with any other definition. That may be because a worker’s place of employment is often not restricted to a fixed geographical location. Depending on the terms of the contract of employment, a worker’s place of employment can be anywhere the employer requires the worker to perform his or her duties, or, engage in activities that are incidental to those duties (NSW Police Force v Cox [2009] NSWWCCPD 20 at [114]).
In the absence of a definition, the meaning of “place of employment” in s 10 must now be determined by reference to the ordinary principles of statutory construction. The question of the meaning to be given to words and expressions within an Act with no special or technical meaning is a question of fact (Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1; Comcare Australia (Defence) v O’Dea [1997] FCA 1409; 150 ALR 318).
The phrase, as used in s 10, has been the subject of several decisions, both in the former Compensation Court of NSW and by the Commission. In Musumeci, the worker arrived at his employer’s car park and, before he left the car park and “bundied-on” to start work, was stabbed by an ex-employee due to a private dispute unrelated to his employment. A tall, metal and wire mesh fence enclosed the car park and the employer’s factory buildings. The issue was whether he was still on a journey at the time of the stabbing, or whether he had arrived at his place of employment.
Quirk CCJ stated (at [18]) that, for the purpose of s 10, a “journey” had to have a starting point and an end point “in temporal terms” and could not “be artificially extended to when the worker actually commences his daily labours”. Relying on decisions made under the 1926 Act (Russell and Young), her Honour said that a journey did not commence until the worker had reached either a public street or highway, or such place as could be used by members of the public. Her Honour therefore concluded that, on the facts before her, the worker’s journey had ended when he parked his car in the employer’s car park and, even though he had not reached the building where he was to perform his duties, he had reached his place of employment.
In Chawla, a case decided six months after Musumeci, the worker drove to work and parked in his employer’s car park. He had walked a short distance towards his office when he suddenly felt acute pain behind his left knee and in his calf muscle. The parties agreed that the worker was on the employer’s property from the time he entered the gates to the car park. However, the worker argued that the car park was not his place of employment because that was not where he worked.
Referring to a submission by the worker’s counsel that the concept of “place of employment” has become more fluid over time, Burke ACCJ said that such “fluid” places of employment seemed to create more problems than they solve and “tend to make one think that there must be a simpler more definitive approach” ([14]). His Honour added, at [16]–[17]:
“16. Absent any definition of either ‘place of abode’ or ‘place of employment’ I would think general principle would indicate the legal boundaries of either property as defining their ambits. The present definition of ‘place of abode’ as being reached or left when crossing the ‘boundary of the land upon which the abode is situated’ would, I believe, be declaratory of the common law position. It would be much the same with or without definition. The Act has from time to time essayed more restrictive definitions but seems to have returned to its roots.
17. On general principle I would believe the place of employment is reached or left upon crossing the boundary of the land upon which the workplace is situate[d]. That being so I would believe that at the time of injury the applicant, having reached, and passed, a terminus, was no longer ‘on’ a journey and was not ‘between’ his place of abode and place of employment.”
His Honour expressly agreed with the approach in Musumeci.
A similar issue came before the Commission in Hogno. In that case, the worker drove to work and parked in the “work car park”. He injured his knee when it twisted as he was getting out of his car. After referring to Musumeci and Chawla, President Keating DCJ held that, having sustained an injury after he “crossed the boundary of his place of employment”, the worker was not injured on a journey within the meaning of s 10(3)(a).
The last case relied on by Mr McManamey is Gray. Ms Gray was a psychiatric nurse employed by Sydney South West Area Health. At the time of the accident, she worked at Rozelle Hospital in Sydney. On the day of her accident, she walked to the hospital, as was her usual practice. She then picked up an electric bicycle from a colleague at ward 25, with a view to trying it before buying it and using it to ride to work when the hospital relocated to Concord. While riding the bike to ward 28, where she was to commence her duties, she fell and suffered injury.
Counsel for Ms Gray argued that, at the time of the accident, Ms Gray was still on a journey. He contended that Musumeci and Chawla could be distinguished because Rozelle Hospital was not “the normal work area” and was “a very large complex of interconnecting roads and buildings and so would be different to a situation where you [sic] out the back and stop at a car park” ([19]). In rejecting that argument, Deputy President O’Grady reviewed Musumeci, Chawla and Hogno. He concluded that, having regard to the state of the authorities, “the inevitable conclusion must be that the journey undertaken by Ms Gray came to an end as she crossed the boundary of the hospital grounds” ([54]).
At the arbitration in the current matter, Ms Green’s solicitor, Mr Brennan, submitted that, on the authorities, a s 10 journey ends at “the boundary of the land where the place of employment is situated” (T12.34). He contended that there does not have to be just one workplace situated on the land. Mr Morgan submitted that the “better test [in the modern day] is when did the worker get to the point of [sic, at] which the employer controlled the environment” (T10.23).
After saying that she did not feel actual persuasion (Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen)) that the respondent was the only occupant of 66 Rickard Road, which was not something that Mr Brennan had suggested was the case in any event, the Arbitrator found that Ms Green fell and sustained injury inside the boundary of the land on which the building was located in which her office was situated on the ninth floor. The Arbitrator then turned to the authorities discussed above. She rightly said that caution had to be exercised relying on authorities under the 1926 Act.
Dealing with Chawla, the Arbitrator said that Burke ACCJ (at [16]) referred to “the legal boundaries of their property” (the reference to “their property” was incorrect – his Honour said “either property” but nothing turns on this error) and (at [17]) to the “boundary of the land”. She said that “these will not necessarily be the same boundaries and it will be a question of fact in each case” ([34]). She added that if, as she assumed was the case in Russell, an employer “occupied the whole of the land within an area depicted on a deposited plan then the legal boundary of the property will also be the boundary of the land” ([34]). However, where an employer does not own or occupy the whole of the area within the deposited plan this result will not necessarily follow.
The Arbitrator based her approach on a misreading of Chawla. His Honour was referring, at [16] and [17], to the same “boundary”, namely, the boundary of the land and/or property upon which the workplace is situated. That is clear from his Honour’s reference (at [16]) to a journey to a “place of abode” commencing and finishing at the “boundary of the land” on which the place of abode is situated. In context, the reference to “property” in [16] was clearly a reference to “land”. Thus, the boundary of the land will be the same as the boundary of the property and the worker will have reached his or her place of employment upon crossing the boundary of the land/property on which the workplace is situated.
Chawla is not reasonably open to any other interpretation. Consistent with that interpretation, which the Commission has consistently applied, Mr Brennan submitted that as Ms Green had crossed the boundary of the land where the place of employment was situated, she had completed her journey. Mr Morgan’s “better test” has no support in principle or authority. It follows that, in the circumstances of the present case, the Arbitrator erred in not applying Chawla.
Applying Chawla, Ms Green had completed her journey when she crossed the boundary of the land on which her place of employment was situated. This analysis is sufficient to dispose of the appeal. However, I should address the balance of the Arbitrator’s reasoning.
In the course of submissions, the Arbitrator drew Mr Brennan’s attention to the sketch plan in evidence, prepared by a surveyor, A B Stephens, which identified the building at 66 Rickard Road to be a “Multi Story Office Building ‘Bankstown Civic Centre’ (Bankstown Council)”, and asked him about the relevance or significance of that information (T16.19 and T18.18). Mr Brennan’s response was that it did not matter and “the inference can be drawn from those words that that’s the place where [Ms Green] worked and I think you could draw that inference because it’s number 66 and that’s the address that I’ve been referring to” (T18.27).

Based on the evidence in the sketch plan, the Arbitrator said that it was an available inference that Bankstown Council owns the building at 66 Rickard Road, but even if such an inference could not be drawn, she said there was no evidence that the respondent owned the building. None of this was controversial. However, on Ms Green’s case, which the Arbitrator erred in not accepting, none of it was relevant. Mr Brennan never contended that the respondent owned or occupied the whole of 66 Rickard Road. His case was that, consistent with Chawla, there did not have to be (only) one workplace on the land (T13.4).
The Arbitrator returned to question of ownership of the property (at [54]) and correctly noted that there was no evidence that the respondent was in the business of owning property or that it leased any property or had any control over 66 Rickard Road. She then (at [58]) referred to Vella v Endeavour Energy [2012] NSWWCC 122 (Vella), a case in which Senior Arbitrator Snell reviewed several authorities on burden of proof and standard of proof.
The Arbitrator said that Ms Green bore the onus of proof “to establish relevant facts” and that her statement was “very circumspect” ([57]), noting that Ms Green merely said that she worked on the ninth floor at 66 Rickard Road as a work, health and safety consultant. The Arbitrator found that, by virtue of working in the building, Ms Green would have knowledge of whether there were other occupants of the building and whether the respondent occupied any area beyond the ninth floor. So much may be accepted. However, applying the correct test, none of that was relevant.
The Arbitrator concluded that, having regard to the authorities referred to in Vella, and the authority of Nguyen, she could not draw the inferences submitted by Mr Brennan and she was not satisfied that Ms Green had discharged her onus of proof. The Arbitrator did not accept that the test propounded by Mr Brennan was “the test”. She said that that test was “just one factor that may or may not be determinative in any particular case” ([57]). For the reasons explained in this decision, the Arbitrator erred in not applying the test propounded by Mr Brennan.
It is difficult to follow the Arbitrator’s reference to not being able to draw the inferences submitted by Mr Brennan. The only inference Mr Brennan invited the Arbitrator to draw was an inference that 66 Rickard Road was “the place where [Ms Green] worked” (T18.28). That was not a matter of inference. Ms Green gave direct (unchallenged) evidence that that was where she worked. There were no other inferences to be drawn. Mr Brennan did not invite the Arbitrator to infer that the respondent was the only employer at 66 Rickard Road. He effectively conceded that there were other employers at 66 Rickard Road, but submitted (correctly) that that did not matter.
Applying the Chawla test, the question of ownership, control or management of the land where Ms Green fell is irrelevant. It is sufficient that she crossed the boundary of the land upon which the workplace is situated. This solution, as Burke ACCJ observed, provides a simpler and more definitive approach, at least in situations where, as in the present case, the worker has a specific and identifiable place of employment. It leads to greater certainty and is consistent with the language used in the section, read in context.
The Chawla test avoids the unsatisfactory and uncertain situation that would result if I were to accept Mr Morgan’s approach. Mr Morgan submitted (at T19.33), by way of example, that a worker could be at his or her place of employment if injured while standing in a lift travelling to the floor where they work. This approach raises more questions than it answers and merely creates uncertainty. Does the journey end on entering the lift? There is no reason why that would be so. Even if the matter had not been the subject of several previous authorities, Mr Morgan’s approach would not be one that should be accepted.
It follows that, having determined that Ms Green received her injury after having crossed the boundary of the land upon which her workplace is situated, the Arbitrator was bound to apply Chawla. That leads to only one conclusion, namely, that Ms Green was no longer on a journey at the time she fell and received her injury.
While there may well be factual distinctions between Chawla and the present case, there are no factual distinctions that justify departure from the general principle identified in that case, which the Commission has consistently applied in later decisions (Hogno and Gray). The issue of control, which appears to have troubled the Arbitrator, does not arise.
The Arbitrator correctly noted that Ms Green bore the onus of proof. However, to discharge that onus she had to prove that she received her injury after she had completed her journey. She did that by proving that she fell inside the boundary of the land upon which her workplace is situated. It does not matter that other employers also occupied 66 Rickard Road, or that another entity owned the land. Those matters did not make 66 Rickard Road any less Ms Green’s “place of employment”. If Ms Green were asked where she works, a reasonable answer would be “the Bankstown Civic Centre” (that is, 66 Rickard Road). She therefore arrived at that place (her place of employment) when she crossed the boundary of the land for that property.
Mr Morgan’s submission that the critical factual issue pressed on behalf of Ms Green had not been made out was incorrect. The factual issue pressed by Mr Brennan was that Ms Green’s journey ended when she crossed the boundary of the land where the place of employment is situated. The Arbitrator correctly found that Ms Green fell after she had crossed the relevant boundary, but erroneously failed to apply Chawla. The Arbitrator erred in distinguishing the relevant authorities and failing to apply the correct principles. As those principles do not turn on questions of ownership or control, it follows that, as explained above, Mr Morgan’s reference to available inferences about ownership and control are irrelevant.
Mr Morgan’s submission that Gray was decided without reference to who owned the land or whether the employer had control and management of the entirety of the land was correct. However, that fact supports Ms Green not the respondent. That is because, applying Chawla, and consistent with it, Deputy President O’Grady accepted that Ms Gray’s journey ended when she crossed the boundary of the land on which the hospital is situated. That is, it ended when she crossed the boundary of the land on which Ms Gray’s workplace is situated. No question of ownership or control arose.
In light of the above reasons, it is not necessary to deal with the Arbitrator’s comments on Vanceva. I merely note that, as the Arbitrator acknowledged, that case did not purport to provide a definition of place of employment. It dealt with s 11, a provision dealing with recess claims, and expressly refrained from commenting on the journey provisions, which have a different purpose and function.

CONCLUSION

The Arbitrator erred in her approach and conclusion and her determination must be revoked. The matter will be remitted to a different Arbitrator for all outstanding issues to be determined.

DECISION

The Arbitrator’s determination of 5 August 2014 is revoked and the matter remitted to a different Arbitrator for determination of all outstanding issues.

COSTS

No order as to costs.

Bill Roche
Deputy President

27 October 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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