ISS Facility Services Australia Pty Ltd v Antonios

[2008] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:ISS Facility Services Australia Pty Ltd v Antonios [2008] NSWWCCPD 52

APPELLANT:  ISS Facility Services Australia Pty Ltd

RESPONDENT:  Tony Antonios

INSURER:Allianz Australia Workers Compensation Ltd

FILE NUMBER:  WCC7950-07

DATE OF ARBITRATOR’S DECISION:          4 February 2008

DATE OF APPEAL DECISION:  20 May 2008

SUBJECT MATTER OF DECISION:                Journey claim; periodic journey; onus of proof; material increase in risk of injury.

PRESIDENTIAL MEMBER:  President Greg Keating, DCJ

HEARING:On the papers

REPRESENTATION:  Appellant:      Stephen Lee Legal

Respondent:   Slattery Thompson

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 4 February 2008 is confirmed.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 29 February 2008 ISS Facility Services Australia Pty Ltd (‘the Appellant/Employer/ISS’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 February 2008.

2.The Respondent to the Appeal is Tony Antonios (‘the Respondent/Worker’).

3.Mr Antonios was employed by ISS as a cleaner working morning shifts at North Sydney Boys High School and afternoon shifts at Naremburn Public School.  He alleges he suffered injury to his left ankle and ribs in a car accident on 1 August 2007 when he was on a periodic journey between his home and place of employment. 

4.The Worker’s usual routine was to work a morning shift at Sydney Boys High School and an afternoon shift at Naremburn Public School.  He normally walked to the afternoon job from his home, which is also in Naremburn, unless it was raining in which case he drove to work. A journey that takes him approximately 20 minutes. On the day of the car accident, Mr Antonios worked his morning shift at North Sydney Boys High School, returned home and at approximately 10.30 am drove to the West Ryde Shopping Centre, to undertake shopping activities.  He left the shopping centre to drive directly to Naremburn Public School at approximately 2.30 pm to commence his shift at 3 pm.  On the drive from the shopping centre to the school Mr Antonios was involved in a car accident.

5.ISS through its workers compensation insurer, Allianz Australia Workers Compensation Limited denied liability on the basis that the Worker was not on a periodic journey within the meaning of section 10(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) or alternatively if the injury was sustained on a periodic journey, then it was sustained during or after an interruption or deviation unconnected with the Worker’s employment (section 10(2)).

6.On 18 October 2007 the Worker filed an Application to Resolve a Dispute in the Commission claiming weekly compensation at the rate of $450.00 per week on the basis of total incapacity from 1 August 2007 to date and continuing.  The matter was listed for a conciliation and arbitration hearing on 15 January 2008.  The parties were unable to resolve the claim and the matter proceeded to hearing.  Both parties were represented. On 4 February 2008 the Arbitrator issued a Certificate of Determination and written Statement of Reasons.  It is from this decision that the Employer now seeks leaver to appeal.

THE DECISION UNDER REVIEW

7.The ‘Certificate of Determination’, dated 4 February 2008 records the Arbitrator’s orders as follows:

“The Commission determines:

1.On 1 August 2007 the Applicant received a personal injury on a journey to which section 10(3)(a) of the 1987 Act, being a daily or other periodic journey between his place of abode and place of employment. The personal injury is therefore a compensable injury for the purposes of section 10(1) of the 1987 Act.

2.Subsection 10(2) of the 1987 Act does not apply to negate the operation of section 10(1) because, in the circumstances of the case, the risk of injury was not materially increased because of the interruption of or deviation from the journey.

3.The Respondent is to pay the Applicant weekly benefits compensation at the rate of $450.00 per week pursuant to section 36 of the 1987 Act from 1 August 2007 to date and continuing. 

4.The Respondent is to pay the Applicant’s costs as agreed or assessed.” 

ISSUES IN DISPUTE

8.The Appellant submits that the Arbitrator erred:

1)   in law and fact in finding that the Worker was on a daily or periodic journey between his abode and place of employment when there was no evidence upon which to base such a finding or in the alternative, such a finding was against the weight of evidence (‘periodic journey’);

2)   in stating that:

a.the issue to be determined was “was the risk of injury materially increased because of an interruption of, or deviation from that journey” and

b.in finding that “whilst ‘in a general sense’ there could have been an increase in the risk of injury” the Commission had to be satisfied that there was a material increase in the risk in the circumstances,

when the law required the Worker establish that on the balance of probability there was no material increase in the risk of injury because of an interruption or deviation from the journey (‘material increase in the risk of injury- onus’)

3)   in finding against the weight of evidence that there was no material increase in the risk of injury (‘material increase in the risk of injury- weight of evidence’).

ON THE PAPERS REVIEW

9.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.”

10.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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. 

LEAVE

11.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

12.The appeal was filed on 29 February 2008 within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

13.The monetary thresholds in section 352(2) are met.

14.Leave to appeal is granted.

FRESH EVIDENCE

15.Neither party seeks to rely on fresh evidence.

REVIEW

16.The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission.  In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:

“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”

17.The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

18.This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’).  To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).

19.The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:

“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.

30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”

20.Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion.  The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).

21.I intend to apply the above principles in the matter before me.

EVIDENCE

22.Mr Antonios relied on a signed statement dated 3 October 2007. In it he stated that he has worked for ISS for approximately six or seven years. He works at North Sydney Boys High School from 5 am to 9 am and Naremburn Public School from 3pm to 5pm.

23.He stated that on 1 August 2007 he returned home after completing his morning shift and at 10.30 to 11am he left home and drove his car to West Ryde shops. He arrived at the shops at 11.45am and bought some sports shoes and left the shops at 2.30pm with the intention of driving straight to work at Naremburn Public School.

24.The Worker stated that he was travelling north along Hermitage Road when the car accident occurred as a result of a vehicle in front of him, without slowing or indicating, attempted to perform a U turn. The Worker stated that he swerved to the right to avoid the car but collided with the right passenger front light. He then lost control of his vehicle, mounted the curb and impacted with a fence. Mr Antonios was taken to hospital in an ambulance and suffered a fractured ankle, which was treated with internal fixation.

25.The Worker also stated that he had received an infringement notice that he was at fault in the accident as a result of overtaking on the right. The police based this conclusion on a statement from a witness. At the time of signing the statement the Worker was off work and receiving physiotherapy treatment.

26.Mr Antonios prepared a further signed statement dated 26 November 2006.  He stated that he left home about 11 am dressed in his work clothes. He drove to the shops where he arrived at 12 o’clock. The trip was 14 km and took him 45 minutes to drive. He stated he left the shops 30 minutes before he was due to commence work and he intended to drive straight to work. If he had intended to drive home first the trip would have taken him 45 minutes. He was involved in the accident 10 minutes after leaving the shops.

27.Mr Antonios also relied on a signed statement from his wife, Nadia Antonios dated 11 December 2007. She stated that on 1 August 2007, Mr Antonios and his friend Mr Germanos were at home between 10.30 and 11am on 1 August 2007. Mr Antonios was dressed in his work clothes and said to his friend that he was dressed for work and going to West Ryde to do some shopping before going to work. He left home at about 11am.

28.Mr Germanos provided a signed statement also dated 11 December 2007 confirming the evidence as contained in Mrs Antonios’ statement.

29.The Worker also relied on a number of WorkCover certificates certifying him unfit for work from 1 August 2007 and a report from his treating general practitioner, Dr Artinian dated 19 November 2007 certifying the Worker unfit for his pre-injury duties due to his ankle injury.

30.The Employer relied on a factual investigation report prepared by Quantumcorp dated 22 November 2007. The report is referred to as an interim report and delays were experienced in the completion of the report as it became apparent to the investigator that the Worker may not have been responsible for the accident and avenues of recovery were investigated. Further the report confirms that the time of 30 minutes he estimated to travel from the shops to the workplace was accurate and appropriate.

31.The Worker gave the investigators a signed statement, which was, on the whole, consistent with the statements referred to above, with the exception of him stating that he purchased a pair of shoes at the shop, on which nothing turns.

32.Attached to the report was a copy of the Police report dated 9 October 2007 which concluded that the Worker attempted to over take a vehicle, which was attempting to perform a right hand turn. The police report recorded the street as straight, the gradient level, the surface sealed and dry and that the accident occurred during daylight hours at approximately 3pm on 1 August 2007.

SUBMISSIONS AND DISCUSSION

Periodic Journey

33.The Appellant submits that:

1)   The test the Arbitrator was required to apply is that set out by the High Court in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [29] which states:

“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.”

2)   There was no evidence that the journey undertaken by the Worker had the character of a journey between his abode and his place of employment.  He normally walked 20 minutes to work from his home in a south-south-easterly direction whereas the West Ryde shops are located 14.2 km west of the Worker’s home.

3)   The fact that Mr Antonios left his home and drove to the West Ryde shops rather than walk to work was an indication that the ‘journey’ did not have the character of a daily or periodic journey.

4)   Travelling from the West Ryde shops to the Naremburn area was unrelated to his employment.

5)    The journey undertaken was not an “indirect” route because the route bore no relationship to the route between the Worker’s abode and his workplace.

6)   The fact that the Worker wore his uniform did not provide evidence as to the character of the journey.

7)   The direction of the journey and the distanced travelled was contrary to the Arbitrator’s finding.

8)   The period of 3 hours that the Worker spent shopping was contrary to the Arbitrator’s finding.

9)   The Worker’s intention when he left home was to go to the West Ryde shops and his intention when he left the shops was not relevant and did not change the character of the journey.

34.Mr Antonios submits that:

1)   Vetter contains the principles to be applied and the Arbitrator applied those principles and Vetter does not exclude journeys that are not “the shortest and most direct routes”.

2)   There was evidence to support each if the elements of ‘journey’ identified by the Court in Vetter.

3)   Contrary to the Appellant’s submission that the journey was not a ‘periodic journey’ within the meaning of the Act, the evidence in support of a periodic journey was that:

a.     he was proceeding to his daily afternoon shift at 3pm, and

b.     the West Ryde deviation occurred about once per month.

4)   There was no evidence to support the Appellant’s submission that he was intending to travel to the “Naremburn area” rather than to his place of employment.

5)   The Arbitrator’s finding that the wearing of his work clothes to the shops provided evidence as to the character of the journey was supported by his sworn evidence that he intended to travel to work via Ryde without travelling home after visiting the shops and before commencing the afternoon shift and was a correct finding on the evidence.

6)   The evidence in relation to the distance and direction travelled only prove deviation, which is not in issue.

7)   The fact that the he limited the time spent at the shops and left the shops 30 minutes before his shift started to travel directly to work and his intentions both when first leaving home and throughout the journey remain relevant and his intention at the time of leaving the shops was a relevant consideration.

35.I say at the outset that I am indebted to the learned Arbitrator for her thorough and lucid analysis of the authorities on this issue and her application of the relevant legal principles to the facts in this case. The Arbitrator found that the Worker was injured in a car accident on 1 August 2007 on a daily or other periodic journey between his home (place of abode) and his place of employment as required by section 10(3) of the 1987 Act. The finding was open to the Arbitrator and I agree with it for the reasons stated below.

36.The Appellant Employer argues that the decision of the High Court in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 (‘Vetter’) at paragraph [29] sets out the test, which the Arbitrator was required to apply in order to determine whether the particular journey was such as to qualify for benefits under section 10 of the 1987 Act. I agree that Vetter provides relevant guidance as to the approach to be adopted. The Arbitrator was mindful of the significance of Vetter, and the similarity of the factual background in Vetter and in the instant case. The Arbitrator (at paragraph [23] of the Reasons) carefully applied Vetter noting in particular that:

“The question as to whether the statutory requirements were satisfied is not to be answered by posing and answering an entirely different question, being whether or not the Worker had engaged in one or more journeys. At paragraph [76] of the decision Kirby J is similarly critical of this approach. While noting that past decisions have posed and answered that question, Kirby J is clearly of the opinion that whether the Worker had engaged in one or more journeys is not the relevant question. That question is unnecessary and may sometimes tend to mislead.”

37.The Appellant Employer submits that there was “no evidence” that the “journey” undertaken by the Respondent Worker had the character of a journey between his abode and his place of work. I disagree with that submission. The Arbitrator found that she was satisfied on the evidence that the Worker’s intention from the time he set out on his trip at about 10.30 or 11am was clear and definite. He intended to drive to West Ryde shops, look around and perhaps do some shopping, and then drive directly to Naremburn Public School in order to do his 3pm shift. She noted that the Worker had undertaken his morning shift at the Sydney Boys High School as was his practice on a regular work day. She noted the Worker’s own evidence supported by two independent witnesses, his wife, Nadia Antonios and Hassib Germanos, that he was dressed in his work clothes/uniform when he left his home to drive to the West Ryde shops. It was open on the evidence for the Arbitrator to find that the Worker’s evidence of his intention when he set out on the journey, the clothing he was wearing, and his evidence as to the route to be taken between West Ryde Shopping Centre and Naremburn Public School, and the Worker’s evidence of the time it would take to complete that journey all constitute evidence to support the finding that the journey undertaken had the character of a journey between his place of abode and place of work. I agree with the finding.

38.The Appellant Employer submits that the fact that the Respondent Worker left his place of abode to travel by car to West Ryde Shopping Centre rather than to walk to his place of employment is an indication that the journey did not have the character of a daily of periodic journey. I disagree. Whilst these may be factors relevant to the question of whether, or not the risk of injury was materially increased because of an interruption or deviation from a journey, the driving as opposed to the walking, does not in my view destroy the character of a daily or periodic journey.

39.The Appellant Employer further submits that the “journey” undertaken by the Respondent Worker was not over an indirect route but that the route taken bore no relationship to the route between the place of abode and place of employment. If I were to accept this submission, which I do not, it would render section 10(2) with little or no work to do. The intention of this section is to compensate journey injuries which would not otherwise qualify for compensation. It is accepted that a worker may choose a longer route to allow him or her to achieve a purpose additional to the journey provided the journey still retains the character of a journey between the place of abode and the place of employment, see Vetter and George v Mechanical Advantage Group Pty Ltd (2002) 23 NSWCCR 303 (‘George’).

40.As stated by the Arbitrator in her Reasons at paragraph [25]:

“In the Court of Appeal decision in The Old Spaghetti Factory v Oughtred [1975] WCR 231 Street CJ said:

‘…in the vernacular, it would seem to be perfectly permissible on the evidence to regard the applicant as having called in at restaurant and the having dropped off his female co-employee in the course of a roundabout journey to his home.  That is essentially what the section comes down to… this was a single and continuing journey upon which the applicant had embarked at the time he left the restaurant.  When he left the restaurant he commenced a journey the terminal point of which was his home at Dundas, notwithstanding that he also intended to interrupt substantially, and to deviate substantially, from that journey …’

In the Court of Appeal decision in Vetter Priestley JA concluded that the case before him fell within the class of cases of which The Old Spaghetti Factory was an example.  At paragraph 87 of his judgment in the High Court Kirby J agrees that Priestley JA correctly regarded the decision in The Old Spaghetti Factory as relevantly indistinguishable on its facts from Vetter, indicating his disagreement with the position taken by Handley JA.”

There is no requirement for the route taken, that is the interruption of or deviation from a periodic journey to bare a “relationship” to “the route between the place of abode and place of employment”, as submitted by the Appellant Employer. I reject that submission.

41.Again the Appellant Employer submits that the work clothing/uniform in which the Worker was dressed “did not provide evidence as to the character of the journey undertaken by the Respondent Worker”. I also reject this submission. The Arbitrator relied, and was entitled to rely, as a factor in determining the character of the journey, on the clothing the Worker was wearing at the time of his accident, which was consistent with his stated intention of travelling directly to work from the shops at West Ryde. The Appellant Employer’s submission that he was dressed in his work clothes “so as to avoid the need to change clothes later on” is mere conjecture.

Material increase in the risk – onus

42.The Appellant submits that:

1)   The Worker failed to discharge the onus of proving that the risk of injury was not materially increased because of the interruption or deviation.

2)   The Arbitrator erred in considering whether or not the Employer had established a material increase in the risk of injury because of an interruption of and deviation from the journey.

3)   The decision of the High Court in Maksymczuk v Gillespie Brothers (1957) 98 CLR 523 established that the Worker bore the onus of proving that there was no material increase in the risk.

4)   If there is a material increased risk of injury it is not necessary that the increased risk caused the injury. See Scobie v K.D.Wilding (1959) 103 CLR 314, where his Honour Fullagher J stated at [326]:

“the proviso is concerned not with the cause of injury but with increased risk of injury”

5)   The evidence before the Arbitrator would tend to suggest there was an increased risk of injury. The Worker failed to discharge the onus of proving that there was no material increase in risk in circumstances where he was involved in a car accident on Hermitage Road, West Ryde when he usually walked a relatively short distance from his home to Naremburn Public School.

43.Mr Antonios submits that:

1)The Arbitrator did not reverse the onus. She correctly stated at paragraph [31] of her Reasons that:

“In these circumstances it is necessary for the Applicant to prove the risk of injury ‘was not materially increased because of the interruption or deviation.’”

2)The Arbitrator correctly applied the principles in Maksymczuk v Gillespie Brothers (1957) 98 CLR 523.

3)The fact that at paragraph [35] the Arbitrator stated “I am not satisfied that in the circumstances of this case the risk of injury was materially increased because of the interruption or deviation” does not mean that she departed from the principles she expressly stated in paragraph [31] (as quoted above).

4)The arbitrator did not reverse the onus. She simply considered all the evidence and decided that the Worker had satisfied the evidentiary onus of showing there had not been a material increase in risk.

5)The Employer’s submission that the Worker failed to call expert evidence to prove the absence of material increase in risk, cannot be founded on a rule of law, nor do the facts of the case require expert evidence, nor would there be a relevant expert upon which to rely.

6)The Arbitrator’s findings of fact are shown to be most probably correct. Her detailed statement of reason discloses no error of law or discretion. Further the workers compensation legislation is to be construed as beneficial legislation (Meggitt Overseas Ltd and others v Grdovic [1998] 43 NSWLR 527 at 536 F-G)

44.In Maksymczuk v Gillespie Brothers Proprietary Limited (1957) 98 CLR 523 (‘Maksymczuk’) at 527, Dixon CJ in dealing with section 7(1)(b) of the Workers Compensation Act 1926 (which is relevantly in the same terms as section 10 of the 1987 Act) said:

“The learned Judge of the Workers Compensation Commission decided that the employer, if the proviso was invoked, must prove that the risk of injury was materially increased by reason of the substantial interruption or deviation, or other break. As his Honour found in the proofs no sufficient evidence that the risk was thus increased, he held in favour of the applicant for compensation.

The learned judges of the Supreme Court, on appeal by case stated, were unable to concur in that conclusion and took the view that the burden of proof to satisfy the conditions stated in the proviso lay on the applicant for compensation.

We think that the view of their Honours of the Supreme Court is clearly right….
It is, in effect, an ordinary case of the burden of proof lying upon him who affirms.”

45.At paragraph [31] of the Statement of Reasons the Arbitrator, after finding that there was a substantial interruption of, and a substantial deviation from the Worker’s journey to work, a finding which is not challenged in this appeal she went on to say, “I am further satisfied the interruption and deviation were for purposes unconnected with either his employment or for the purpose of the journey (section 10(2)(b) of the 1987 Act). In these circumstances it is necessary for the Applicant to prove the risk of injury was ‘not materially increased because of the interruption or deviation’”.

46.The Arbitrator has clearly identified in accordance with Maksymczuk the onus of proving that the risk of injury had not been materially increased because of the interruption or deviation, clearly lay with the Applicant.

47.In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Justice Campbell said:

“If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If the defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument.

…Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if the evidence that the plaintiff adduced was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. In that situation, one says that an onus of adducing evidence shifts to the defendant because the defendant is then in a situation in which, if the defendant does not adduce evidence concerning that proposition, the party might succeed in establishing that proposition.”

48.In this case no expert evidence was called by either party. I make no criticism of the parties as this is not a case which readily lends itself to any form of expert evidence. It seems to me that the evidence of the Worker’s stated intent when he set out on the journey, the clothing he was wearing, the evidence of the route to be taken between the West Ryde Shopping Centre and the Naremburn Public School and the evidence that the Worker had sufficient time to complete that journey prior to commencing his shift establish that there was sufficient evidence from which the negative proposition may be inferred. That being so, the evidential onus then shifted to the Employer to adduce evidence that the negative proposition is incorrect. No such evidence was introduced by the Employer leaving the Arbitrator with the Worker’s evidence as the only evidence on that topic.

49.I am satisfied that the Arbitrator’s findings on onus of proof were open to her and were entirely consistent with the approach adopted by the High Court in Maksymczuk. Thus, the submission that the Arbitrator fell into error on this question of law must also fail.

Material increase in the risk – evidence

50.The Appellant submits that:

1)   “Whether the risk of injury was not materially increased is a question of fact and the worker must prove the negative - Tucker v WD and HO Wills (1969) 43 WCR 11 at 19.”

2)   In accordance with Scobie, the Worker both extended the journey with a substantial interruption or deviation and drove a total of 28 km rather than walk from his home to the school in the same suburb.

3)   The Arbitrator in finding that “in a general sense” driving on back roads for an additional 1.5 hours could increase the risk of an accident occurring, that she in fact found that there was an increase in the risk of injury consequent upon the interruption /deviation.

4)   The Arbitrator correctly stated that there was no evidence regarding material increase in risk.

5)   The Arbitrator erred in making a comparison of the risk of driving directly to Naremburn Public School with the risk of driving via the West Ryde shops. The comparison should have been between walking to the school and driving via the West Ryde shops.

51.Mr Antonios submits that:

1)    The factual evidence that proves the absence of a material increase in risk include:

i.he had undertaken the journey many times and was familiar with the route;

ii.he was taking a common backstreet route used by many motorists and thus reducing the risk by avoiding heavy traffic;

iii.it was bright daylight and a fine day;

iv.he was travelling outside peak hour, and

v.there was no evidence of speeding.

2)   The Employer’s submissions in relation to Scobie are misconceived and the Arbitrator correctly applied the principles in Scobie.

3)    Scobie distinguished three categories of risk:

i.The lowest risk in which there is no deviation or interruption to a periodic journey;

ii.A higher level of risk accompanied by a deviation or interruption necessitated by the increased distance or increased time taken to travel, and

iii.An even higher level of risk that may or may not accompany a deviation or interruption by reason of an additional feature of the journey.

4)   The Arbitrator accepted the presence of (i) and (ii) above but did not find the presence of the additional feature in (iii).

5)   The Employer’s submissions that driving the distance and location that he did as opposed to walking, confused and merged the risk levels in (ii) and (iii).

6)   The Employer cannot, on the Scobie principles, rely on the increased distance and time travelled as relevant to material increase in risk.

52.The Appellant Employer submits that whether the risk of injury is materially increased is a question of fact and a Worker must prove the negative Tucker v WD & HO Wills (1969) 43 WCR 11 (‘Tucker’) at [19]. On this point the Respondent Worker agrees. In Tucker Gibson J in the Workers Compensation Commission of NSW found in favour of a worker seeking compensation after having sustained an injury during the course of an interruption to his journey during which he spent one hour in a local hotel. He there consumed his normal consumption of alcohol and proceeded home in darkness. Had he not interrupted his journey he would have reached his home during a period of light. His Honour Judge Gibson found in favour of the Worker finding that the intake of alcohol and the darkness did not materially increase the risk of injury. An appeal to the NSW Court of Appeal was dismissed. In dismissing the appeal, Herron CJ said:

“For the reasons that I have averted to earlier, in my opinion these were questions of fact for his Honour and as he was entitled to come to such a decision as a question of fact this court cannot and will not disturb his finding.”

He went on to say:

“This finding of the Judge, that there was some slight increase in the risk, is not inconsistent with the Applicant having discharged the onus placed upon him upon such an issue. His Honour distinguished between the prima facie slight increase present in such circumstances and a material increase which deprives a worker of his right to compensation. In my opinion the two findings are reconcilable when one comes to consider the context in which they are used in the Workers Compensation Act.”

53.Jacobs JA went on to add:

“I also agree that the question arising under the proviso was one of fact for the Commission, and in this regard it must be borne in mind that the Applicant was bound to prove a negative, namely that the risk of injury was not materially increased by reason only of the substantial interruption or substantial deviation. This negative could not in the nature of things be exhaustively proved, because the number of elements of which account might be taken was practically inexhaustible. The Applicant could not negative all elements, but could only point to those of them that seemed to be most important. There was evidence before the Commission on important aspects of this question, and the Commission on those aspects could satisfy itself that the risk had not been materially increased. That being so, the issue remained one of fact and the learned Commissioner was entitled to reach the conclusion to which he did come.

54.The Appellant Employer submits that there is “a clear and obvious distinction” between the risks involved in being a pedestrian, walking from the Respondent Worker’s home to Naremburn Public School and driving a total of some 28 kilometres from Naremburn to West Ryde shops and return. The Appellant Employer argues that there is support for that notion drawn from the High Court decision in Scobie v KD Welding Co Pty Ltd (1959) HCA 65; (1959) 103 CLR 314 (‘Scobie’). The Arbitrator referred in her decision to Scobie and noted that the Court observed that the increased length of a journey and the increased time of travel, even where both are substantial, do not without more bring a case within the proviso dealing with the material increase in risk of injury (per Dickson CJ). Quoting from the judgment of Windyer J at 330-331 she noted:

“A deviation or delay, prima facie, increases the perils of a journey, because it adds a new place or a further time in which danger may arise and loss occur. In particular cases, however, a deviation may actually reduce the risk of loss…as I have said…any substantial interruption or deviation must, in one sense, be likely to increase the risk of injury during the journey…but such an increase would not necessarily be a material increase.”

55.In order to determine the policy of the enactment the High Court considered the various amendments to the journey provision of the 1926 Act, having done so Windyer J noted:

“The policy of the enactment becomes, I think, evident. A worker is disentitled to compensation if, but only if, a material increase in the hazards of the journey, in the circumstances existing when the interruption, deviation or break is made, be then predicated as it’s necessary consequence. The Worker in making such an interruption, deviation or break forthwith deprives himself of the benefit of the Act and the Employer is discharged from liability. But the Worker does not suffer if the interruption, deviation or break would not, without some fortuitous and unforeseen further occurrence, have materially increased the risk.”

56.The Arbitrator accepted that the deviation and interruption were substantial. She accepted that in a “general sense” driving on roads whether main roads or back roads, for an additional 1.5 hours (approximately) would increase the risk of an accident occurring. I agree with those findings.

57.The Arbitrator, correctly, directed herself that she must be satisfied that there was a material increase in the risk of injury in the particular circumstances of the case. The Appellant Employer argues that driving some 28 kilometres from Naremburn to West Ryde shops and return, of itself and without more, when compared with a pedestrian walking from the Worker’s home to the Naremburn Public School, is a material increase in risk. Whether this is true is a question of fact. In determining that question of fact the Arbitrator took into account a number of factors:

i.the Applicant usually walked to work but he sometimes drove to the school from his home;

ii.the traffic to and from West Ryde on the day of the accident was light;

iii.the Respondent Worker was not travelling in peak hour;

iv.the journey was conducted entirely in daylight;

v.the Worker was travelling on a back route from West Ryde to his place of employment to avoid the heavier traffic of the main roads including Ryde Road;

vi.the weather conditions were fine;

vii.the Respondent Worker allowed himself sufficient time to complete the journey from West Ryde taking the route that he elected, in order to arrive at Naremburn School within time to start his shift, and

viii.there was no evidence of excessive speed. 

58.The Arbitrator accepted the Respondent Worker’s evidence that the accident occurred in circumstances where the vehicle travelling ahead of him on Hermitage Road made a sudden and unexpected U turn across his path rendering a collision unavoidable.

59.It is trite to say that Workers Compensation legislation is beneficial legislation and should be construed beneficially (see Meggitt Overseas Ltd and Others v Grdovic [1998] 43 NSWLR 527 at 536 F-G). Dixon CJ in Scobie noted (at 321) it is important to note that the proviso is expressed in terms which give a positive right to a worker to receive compensation. Section 10 of the 1987 Act is also couched in terms that give a positive right to compensation.

60.The Arbitrator, mindful of the principles set out in Vetter and Scobie and considering the circumstances as a whole, was satisfied as a question of fact, that the risk of injury to the Respondent Worker was not materially increased by reason of the interruption or deviation from his journey. On the facts before the Arbitrator, this finding was open, and I agree with it.

61.The Arbitrator accepted that driving around the metropolitan streets of Sydney, when compared to walking a much shorter distance between the Respondent Worker’s place of abode and place of employment created a risk of injury. The Appellant Employer would argue that without more the driving, compared to the walking was a material increase in the risk of an injury. I do not believe that to be the case. The Appellant Employer has been unable to argue that there were additional factors such as travelling in darkness, travelling in inclement weather, travelling over rough terrain or travelling when affected by alcohol, for example, which may be factors that could, in certain circumstances, but not invariably, elevate a risk of injury to a material risk of injury.

62.It is instructive to observe, though it is not necessary for the determination of the issues raised on appeal, that the actual cause of the injury suffered by the Respondent Worker was a “fortuitous and unforeseen further occurrence” (see Scobie page 332), namely, the attempt by another driver to execute, without warning, a U turn across his path in circumstances where a collision was inevitable.

63.The approach taken by the Arbitrator to determine whether there was a material increase in the risk of injury because of the Respondent Worker’s interruption or deviation from his journey is consistent with the authorities. I agree with the findings she made. They disclose no error.

DECISION

64.For the reasons given in this decision the Arbitrator’s determination of 4 February 2008 is confirmed.

COSTS

65.The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

His Hon. Judge Greg Keating

President

20 May 2008

I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE