Kazzi v Mannings Towing Pty Limited

[1990] HCATrans 18

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0l of 1989

B e t w e e n -

GEORGE KAZZI

Applicant

and

MANNINGS TOWING PTY LIMITED

First Respondent

and

STATE COMPENSATION BOARD

Second Respondent

Application for special leave

to appeal

Kazzi

M.ASON CJ

DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 1990, AT 12.29 PM

Copyright in the High Court of Australia

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MR B.G. GROSS, QC:  May it please the Court, I appear with

MSC.A. RIMMER for the applicant. (instructed by

McClellands)

MR I. FALCONER:  May it please the Court, I appear for the

second respondent. (instructed by G.J. Curran,

WorkCover Authority of New South Wales)

MR M. JOSEPH: If it please the Court, I appear for the

first respondent. (instructed by Crichton-Brownes)

MR GROSS:  Your Honours, we submit this matter raises two

general questions of public importance: first,
the more narrow question of whether employees
injured while voluntarily attempting to prevent
crime or assist the third party, fall outside the

coverage of the WORKERS COMPENSATION ACT because such voluntary behaviour does not either advance

their employer's interest or possess any motive

or intention to serve the employer. There is a

second and wider question which, in our submission,
extends over the whole ambit of determination of
claims under the WORKERS COMPENSATION ACT, namely,

whether an injury to a worker cannot arise out of

the employment where, at the time of the injury,

he was not carrying out an activity incidental to

his employment even though a causal connection

exists between employment and injury.

Your Honours, focusing upon the second question

first, it is our submission that the majority in

the Court of Appeal, in effect, removed the

disjunctive from "arising out of or in the course

of the employment" and posed a test of arising·

out of the employment which requires that in any

event the employee be within the course of the

employment.

Now, Your Honours, the best way to identify that is to go to the dissenting judgment of

His Honour Mr Justice Priestley. The relevant

passage, Your Honours, is at page 69. In dealing
with "arising out of" His Honour refers first of all

to the Court of Appeal's own decision of

TARRY V WARRINGAH SHIRE COUNCIL and His Honour

then quotes with approval from a number of judgments

there. Do Your Honours have page 69?

MASON CJ: Yes.

MR GROSS:  Now, first of all, the judgment of His Honour

Mr Justice Hutley - Your Honours, this was a case

where a foreman and an employee had an altercation

at work concerning their respective duties. It was

found the injury was not one in the course of the

employment but ultimately the Court of Appeal found

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that the injury was one which arose out of the

employment because of the causal nexus, and

Your Honours will see the judgment of and following:

it is quite clear on the evidence that

the injury from which the deceased died

arose out of his employment. It arose

out of an altercation between two
employees of the Warringah Shire Council
about a matter which concerned their

respective authorities and duties; it

arose in a work situation. It does not
follow that the injury did not arise out

of the employment because in the course

of what he was doing the deceased was

doing acts which were not in accordance

with his duties as a foreman.

And His Honour then goes on to say it does not

matter, in effect, that there was misconduct and

there was no part of his responsibility to be

engaging in a fight at the time.

His Honour Mr Justice Priestley at page 70

also quotes some fairly familiar statements

concerning "arising out of the employment" and

there is a quotation of His Honour Mr Justice Glass

at page 8 on page 70:

"In a given situation the injury may

arise out of the employment, even though

at the time it is sustained the deceased

or the applicant is no longer in the course

of his employment -

and then there are a number of tests referred to,

that there must be -

a causal connection between the employment

and the injury ..... the injury -

must have -

its origin in the employment.

Line 20. And then His Honour Mr Justice Samuels:

there -

must be -

a causal connection between the employment

and the injury.

His Honour, applying those well-established principles,

ultimately reached the conclusion at page 71 that

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had His Honour approached the matter correctly

it was inevitable that, applying this approach

in TARRY, there be a~

conclusion that the injury arose out

of the appellant's employment.

MASON CJ:  If the applicant went on to the roof of Trieste

Smash Repairs independently of his employment and

because of a personal relationship he had with the proprietor of Trieste Smash Repairs, how can there

be a relevant causal connection between his employment

and what occurred?

'MR GROSS:  Your Honour, the question of whether it was

independent is, of course, another contentious

matter in the case.

MASON CJ:  But that is the subject of a finding of fact

against you.

'MR GROSS:  Yes, Your Honour. Your Honour, the causal

connection arose because the employment took him

to that location where the natural impulse to

rescue arose. This was a matter that - - -

DEANE J: But that is your problem, is it not? Whatever

one might think of the findings the second time

round, when one reads them against the findings

the first time round, they are there and they
apparently were not challenged as factual findings

in the Court of Appeal.

'MR GROSS:	Your Honour, I agree with the word "apparently" if one reads the judgment. Your Honours, we did
annex to the affidavit the notice of appeal and the written submissions and the supplementary
grounds of appeal. The majority judgments appear
to take scant notice of the points raised in this
matter and it was certainly a hot matter of
contention in those grounds and in argument as to
whether or not there was truly some independent
decision to serve, as it were, a third party and
not to serve the employer or to do something which was rationally connected with that employment.

DEANE J: But do not let me lead you into unhelpful fields

though because the more you move into that field

the more you muddy the waters so far as the

case raising any question of general principle is

concerned.

'MR GROSS:  Your Honour, that is why we are focusing upon the

anterior matters but I am merely saying so in

response to what Your Honour has raised that the

matter does not seem to have been raised down

below.

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DEANE J: But what I was pointing to you was the findings on which it proceeds are really that your client went

off scampering round on the roof, or whatever the

word the learned primary judge used, on a frolic

of his own for someone with whom he had a connection

which is hinted at as being a personal connection

of a particular kind.

MR GROSS:  Yes. Your Honours, the Court of Appeal did fasten

upon what is described as being a finding which

it was said was unchallenged but, in fact, the

conclusion referred to in that particular finding

was subject to multiple challenges. But, Your Honours,

I appreciate that brings us to the area of particular

circumstances rather than general considerations.

Can I perhaps get back ~o the track of the

more identifiable general errors of public

importance which arise from the judgment of the

Court of Appeal? Your Honour, the judgment of

His Honour Mr Justice Clarke at pages 77 and 78

captures the error in a neat form. Your Honours

will see on page 77, line 14 and following, His Honour

proceeds to deal with "arising out of the employment"

and His Honour says this:

The appellant also sought to argue that

his Honour's factual findings compelled the

conclusion that his injuries arose out of the employment. It may be that there are cases in which a causal nexus between the

injury and employment may be shown even

though the injury did not arise in the course
of the employment. But in the present
circumstances the conclusion that the

appellant was not carrying out an activity

incidental to this employment when he fell

through the roof and sustained injury seems

to me to compel the conclusion that

his Honour was correct in rejecting the

appellant's alternative claim.

So that His Honour built in an element that we had

to establish that he was engaging in an activity

incidental to his employment.

GAUDRON J: In these particular factual circumstances only?

MR GROSS:  Your Honour, I do accept that particular response

as being a possible way of looking at the matter

but, in our submission, His Honour Mr Justice Mahoney

has adopted the same sort of approach reading down "arising out of the employment" by reference - - -

GAUDRON J:  In this particular case, if he was not in the course

of employment when he sustained the injuries, the

injuries having happened instantaneously with the

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event, could they be said r.o arise out of his

employment?: ,.

MR GROSS:  Your Honour, we would adopt what Mr Justice Priestley

said, that the man had a car in tow which had to be

deposited on the premises. His employer,

Mr Manning, was coming to the premises. There had

been no prohibition on what steps should be taken

in response to the perceived risk that there was
an intruder there and it was a reasonable step

within the scope of what was permissible to have a

look within the premises to see whether an intruder

was there. The vehicles could not be left there
unless it was known that there was no intruder

there. Alternatively, they could not drop the

cars off and go and collect some more vehicles in

the tow trucks until they had solved that particular

innnediate problem. So that ·it was entirely within

the range of what an employee might do in such a

situation, that he would get up on the roof to find

out whether there was someone in there.

Now, Your Honours, can I then, in relation

to the general questions, take Your Honours to

what was said by His Honour Mr Justice Mahoney.

His Honour, at page 49 and proceeding through to

page 59, sets out an analysis under the heading

"The injury as arising out of the employment."

The analysis of "in the course of" then starts at

page 59. Now, Your Honours, His Honour does start

off by spelling out the usual difference between

the two expressions, namely, "causal connection"

in relation to arising out of, "temporal relation" in relation to the other. However, His Honour, in

our submission, sowed the seeds of potential
confusion in the law by then proceeding to analyse

what, in respect of each expression, is meant by

"the employment" and Your Honours will see that at

line 21. His Honour did so by reference to a

lengthy analysis of this Court's decision in

BILL WILLIAMS PTY LIMITED V WILLIAMS, 126 CLR. Your Honours, the notable feature about that

case is - and might I, Your Honours, hand up

photocopies of the headnote of that particular case,

together with the introductory words. The only

issue in that case, as Your Honours will see from

the bottom of page 147 was whether His Honour

erred -

in law in holding that the applicant had failed to establish that he had received

an injury in the course of his employment.

And, Your Honours, all of the judgments - and judgments at pages 52 through to, I think, 57 ,-

are concerned with what does "in the course of

the employment" mean. What is incidental to the

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employment. And all those are questions to be

considered under the heading of entitlement

"in the course of".

Now, I will not take Your Honours through

what His Honour has quoted or said but can I

take Your Honours to the conclusionary part on

page 56, line 14:

In the present case, the learned judge

found the circumstances in which Mr Kazzi

went on the roof: as I have said, his

finding was to the effect that Mr Kazzi

was there, not for Mannings' purposes but

for the purposes of Trieste and himself.

And, in my opinion, his Honour concluded

that the employment was __ interrupted.

The finding that Mr Kazzi went on the

roof not for Mannings' purposes but for those
of Trieste and himself is one of fact which,

in my opinion, it is not open to this Court

to review. However, upon the basis of

approach adopted in the BILL WILLIAMS case,

I shall consider whether it was open·to

his Honour to conclude that the employment
interrupted.

His Honour then embarks upon that question and there is more on that subject on page 57. Finally, can I take Your Honours to line 21 on page 57.

His Honour's conclusion was that what

had happened was not within the employment.

In coming to this conclusion, he examined

in detail the question whether what Mr Kazzi

did was within the employment because it was

incidental to it. He concluded that it was

not. In doing this, his Honour followed

the language used in cases in which

questions of the present kind have been

considered: see, eg, the passages which I

have cited from the judgment of Stephen J

in the BILL WILLIAMS case. I have, in

examining the matter, dealt with it by

reference to whether the employment was

interrupted. The question which his Honour

considered was, I think, relevantly the
question which, in my opinion, arose for

decision.

So that, in our submission, the majority judgment in

the Court of Appeal completely failed to deal with the

applicant's case according to law. There was superimposed

upon "arising out of" and the usual "causal connection"

question the extra question as to whether or not, to

adopt what His Honour Mr Justice Clarke, the other

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majority judge,said, the applicant was at the time

carrying out an activity incidental to his employment.

Now, Your Honours, in our submission, this is

a type of judgment involving relatively interesting

facts, as cases of that kind go, where workers

compensation judges, practitioners advising and
appearing, will closely read such judgments in order
to determine where stands the law but, in our
submission, the Court of Appeal majority judgment
effectively turns the clock back to the days when

both requirements had to be establishedi

"arising out of or in the course of the employment."

So, in so doing, in our submission, the applicant

has lost the entitlement to have "arising out of"

dealt with separately but secondly, in our

submission, the court has ~de matters infinitely

harder for persons who need to have their cases

considered under that heading.

In our submission, it is a long time since

this Court has dealt with "arising out of or in- the
course of the employment" and the clarification

along the lines of TARRY's case, in our submission,

would be a desirable one. Your Honours, let it not
be assumed that the finding of fact upon which the

Court of Appeal made its finding is not subject to challenge. It always has been and, of course, in looking at that particular finding one has to go to

more general considerations concerning what is

legitimate and reasonable to workers faced with

situations where some emergency or rescue activity

is seen by them to be justified.

Your Honours, I will not deal with any of the other errors that we contend arise in this judgment.

In our submission, it is both a question of general

importance and conspicuous error by the Court of

Appeal in dealing with the particular matter. That

completes my submissions.

MASON CJ:  Thank you, ,Mr Gross. The Court need not trouble

counsel for the respondents.

The finding made by the Compensation Court

was that the applicant entered the premises of

Trieste Smash Repairs "independently of the

service to Manning and pursuant to his own relation with Trieste". In view of this critical finding of fact, we do not consider that the proposed appeal

is likely to result in any elaboration of general

principle. It is a case which turns on its own

particular facts and is therefore not appropriate

for the grant of special leave.

The application is therefore refused.

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MR GROSS: If the Court pleases.

MR FALCONER:  I would seek an order for costs for the second

respondent?

MASON CJ:	You cannot oppose that, Mr Gross?
MR GROSS:	No, Your Honour.

MASON CJ: The application is refused with costs.

MR JOSEPH:	I take it that is for the first respondent too?
MASON CJ:	Why should there be two lots of costs in this

case?

MR FALCONER:  If I can have a go first, ·Your Honour. We submit

that there should be certainly costs for the second

respondent. The first respondent did not appear on

the appeal and has appeared in any appellate

jurisdiction only today. It was the second respondent,

the Compensation Board, that carried the argument in
the Court of Appeal and I submit is the appropriate

respondent to have its order for costs here.

MASON CJ: Yes.

MR JOSEPH:  Your Honour, if leave was to have been granted,

the consequence upon my client would have been that it

could well have been subject to an order for

compensation payments. The Board would only pay

in lieu of my clients failing to pay and we had a

viable and important interest to protect the

Court of Appeal's decision below.

MASON CJ:	Do you want to say anything about that, Mr Gross?
MR GROSS:	Your Honours, we would  have to accept Mannings

Towing Pty Limited does	have a financial interest
because ultimately they	could bear a financial burden

but, in our submission, it is really a matter for

the Court's discretion.	But they did not turn up
in the Court of Appeal,	one wonders why they turned
up now.

MASON CJ: The Court is of opinion that there should be only

one set of costs payable by the applicant to the

respondents.

MR GROSS: If the Court pleases.

MASON CJ:  It is suggested that if the respondents cannot reach

agreement then the equitable result is that the
respondents share the costs between t?reni-that is, share the

liability or share the receipt of them.

AT 12.50 PM THE MATTER WAS ADJOURNED SINE DIE

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