Motor Accidents Insurance Board v Cook
[2013] TASFC 4
•25 February 2013
[2013] TASFC 4
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Motor Accidents Insurance Board v Cook [2013] TASFC 4
PARTIES: MOTOR ACCIDENTS INSURANCE BOARD
v
COOK, Russell David
BUCKINGHAM, Ronald Frederick
FILE NO: 757/2012
JUDGMENT
APPEALED FROM: Cook v Buckingham [2012] TASSC 53
DELIVERED ON: 25 February 2013
DELIVERED AT: Hobart
HEARING DATE: 13 November 2012
JUDGMENT OF: Crawford CJ, Tennent and Wood JJ
CATCHWORDS:
Employment Law – Rights and liabilities as between employer and third parties – Liabilities of employer – For torts of employee – Acts in course of employment and within scope of authority – Particular cases – Employee driving fellow employee to work – Employer providing vehicle, fuel and payment for travelling time.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss138AA(1) and (3) and 138AB(1).
Commonwealth of Australia v Cocks (1966) 115 CLR 413; Harrison v British Railways [1981] 3 All ER 679; Vandyke v Fender [1970[ 2 QB 292; Weaver v TredegarIron & Coal Co Ltd [1940] AC 955; Nottingham v Aldridge [1971] 2 QB 739, applied.
Aust Dig Employment Law [1103]
REPRESENTATION:
Counsel:
Appellant: B R McTaggart
First Respondent: K E Read SC
Second Respondent: T Cox
Solicitors:
Appellant: McLean McKenzie & Topfer
First Respondent: Murdoch Clarke
Second Respondent: Temple-Smith Partners
Judgment Number: [2013] TASFC 4
Number of paragraphs: 48
Serial No 4/2013
File No 757/2012
MOTOR ACCIDENTS INSURANCE BOARD v RUSSELL DAVID COOK
and RONALD FREDERICK BUCKINGHAM
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
TENNENT J
WOOD J
25 February 2013
Order of the Court
Appeal dismissed.
Serial No 4/2013
File No 757/2012
MOTOR ACCIDENTS INSURANCE BOARD v RUSSELL DAVID COOK
and RONALD FREDERICK BUCKINGHAM
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
25 February 2013
On a Monday morning in September 2008, the first respondent, Mr Cook, was injured when the motor vehicle in which he was travelling, and which was owned by his employer, Gradco Pty Ltd, and being driven by another employee, the second respondent, Mr Buckingham, ran off the road about eight kilometres north of Tullah in western Tasmania. They were in the course of a journey from their respective places of residence in north-western and northern Tasmania to the Rosebery area where they worked for Gradco. Mr Cook sued Mr Buckingham for damages for his injuries claiming that they were caused by Mr Buckingham's negligent driving. Negligence was admitted for the purposes of the action.
Ordinarily, the appellant, the Motor Accidents Insurance Board, would have been liable to indemnify the negligent driver in respect of any liability for damages pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973, s14(1). However, the Board contended that, in the circumstances of the case, it had no liability, and that certain provisions in the Workers Rehabilitation and Compensation Act 1988 applied to the damages claim. A major contention between the parties concerned whether, at the time of the accident, Mr Buckingham was acting in the course of his employment. If he was not so acting, the Board was liable to indemnify him. Mr Buckingham took third party proceedings against the Board, claiming an indemnity in respect of his liability for damages, if any. He also pleaded a defence under the Workers Rehabilitation and Compensation Act, in case it applied.
There was a second action, commenced by the employer, Gradco, and its insurer, in which they claimed from Mr Buckingham payments they said they made under the Workers Rehabilitation and Compensation Act in respect of Mr Cook's injuries. There is no need to mention that action further.
It was ordered that the two actions be heard together and that the issues as to liability be tried before the assessment of damages. Following a trial, Mr Cook obtained judgment against Mr Buckingham for damages to be assessed. Blow J found that Mr Buckingham was not acting in the course of his employment when Mr Cook was injured and that Mr Buckingham was entitled to be indemnified by the Board in respect of his liability to Mr Cook. It was ordered accordingly.
The appeal has been brought from those outcomes. The Board claims that the judgment for Mr Cook against Mr Buckingham for damages should be set aside and in lieu thereof, there should be judgment for Mr Buckingham against Mr Cook. The sole ground of the appeal is that the learned judge erred in failing to find that Mr Buckingham was driving in the course of his employment with Gradco when Mr Cook was injured and therefore, that Gradco was vicariously liable for his negligent driving.
If the ground fails, and my conclusion is that it does, the appeal must be dismissed. If the ground succeeds, further issues would require determination by the Court. They were not dealt with by the learned judge in light of the finding that Mr Buckingham was not driving in the course of his employment. Because I have determined that the appeal should be dismissed, I will not deal with them either.
Was Mr Buckingham driving in the course of his employment?
I will explain first why the determination of this issue is important. At the time of the accident, the Workers Rehabilitation and Compensation Act, s138AB(1), required that before commencing proceedings in any court for an award of damages, "a worker who intends to seek damages against an employer must lodge with the Tribunal an election to claim damages"[1]. The reference to the Tribunal was to the Workers Rehabilitation and Compensation Tribunal. By virtue of s138AA(3), the reference to "an employer" included a reference to a person for whose acts an employer is vicariously liable. At common law, an employer is vicariously liable for the torts committed by an employee in the course of his or her employment.
[1] Section 138AB(1) and (2) was subsequently amended by the Workers Rehabilitation and Compensation Amendment Act 2009, but the amendments do not apply to injuries suffered before 1 July 2010.
Mr Cook did not lodge an election under s138AB(1). It follows that his action was doomed to fail if that subsection applied.
Relevant to that question is s138AA(1) and (3), which read:
"(1) This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker if —
(a)the injury was caused by the negligence or other tort of, or a breach of contract or statutory duty by, an employer; and
(b)compensation has been paid or is payable in respect of the injury under this Act or would have been paid or be payable but for section 25(2).
(2) …
(3) A reference in this Division to an employer includes a reference to a person for whose acts an employer is vicariously liable."
Mr Cook's injuries were caused by the negligence of Mr Buckingham, who admitted that, but Gradco itself was not negligent. Mr Cook's case is that Mr Buckingham was not driving in the course of his employment; therefore, Gradco was not vicariously liable for the driver's negligence; therefore, the driver's negligence did not constitute negligence on the part of an employer for the purposes of s138AA(1)(a); and therefore, the provisions of s138AB did not apply to his claim for damages and the lodgement of an election was not required[2].
[2] For the purposes of the issue I am considering, the provisions of s138AA(1)(b) are immaterial. They will become material if the Court concludes that it should have been found that Mr Buckingham was driving in the course of his employment by Gradco, and therefore, that the ground of appeal succeeds.
The Board's case is that Mr Buckingham was driving in the course of his employment; therefore, he was a person for whose acts Gradco, as his employer, was vicariously liable; therefore, the negligence of Mr Buckingham was the negligence of an employer for the purposes of s138AA(1)(a); therefore, s138AB did apply; and therefore, as no election was lodged by Mr Cook with the Tribunal, his action must fail.
I turn to the question whether the learned judge erred by finding that Mr Buckingham was not driving in the course of his employment. The answer requires a detailed consideration of the evidence. Much, but not all of it, was referred to by the learned judge.
Both Mr Cook and Mr Buckingham were employees of Gradco under contracts of service. At the time of the accident, Mr Buckingham had been the operator of an excavator for some months at a project of Gradco at the Bobadil Dam at the mine of Zinifex, not far out of Rosebery. Mr Cook had worked at a number of locations for Gradco over the preceding months, including Savage River, Que River Mine, and Launceston Quarries, but for the previous couple of weeks he had been working as a dump truck operator at the Bobadil Dam project.
Gradco's head office was at St Leonards, near Launceston. Its business was major civil, road and mining construction work. Because of the nature of its operations, it had employees at a number of worksites throughout Tasmania which changed, no doubt, regularly. Mr Buckingham and Mr Cook had no permanent worksite. Gradco's employees numbered possibly 130, and ranged from labourers to highly skilled machine operators, mechanics, fitters and others. Only seven of them were working on the Bobadil Dam project.
In most employment situations, employees are expected to get themselves to and from work each day at their own cost. However, because Gradco had no permanent worksite, but a number of worksites, and moved its workforce from one location to another, depending on what construction work it had in hand, it only required that employees who lived within 30 kilometres of their allocated worksite get themselves there at no cost to Gradco. The contracts of service of Mr Cook and Mr Buckingham provided that if they lived over 30 kilometres from their worksite, they were to be paid while travelling to and from it, and provision was made for their mode of transport to be provided or its costs paid.
The employment classification of both Mr Buckingham and Mr Cook was as a "Civil 3". That determined their rate of pay. They were employed under what was referred to as an Australian Workplace Agreement ("AWA"), entitled the "Gradco Pty Ltd Employee Collective Agreement Field Operators 2008-2010".
The learned judge noted that the AWA included a number of relevant provisions, to which I add a reference to cl 6.23:
· Clause 1.3.2(c) provided that the agreement was "intended to cover all matters pertaining to the employment relationship".
· Clause 1.3.2(d) provided that the agreement regulated "all terms and conditions of employment".
· Clause 2.1.1 provided that full-time employees were engaged on the basis of working a roster equal to an average of 40 hours per week, Monday to Friday; and that their wage was inclusive of all penalties, overtime and allowances pertaining to working eight hour shifts over Monday to Friday, 4am to 6pm.
· Clause 2.2.1 permitted the employer to direct employees "to carry out such duties and functions as are reasonably within the capabilities of an employee to perform subject to their skills, training, competence and legal ability".
· Clause 3.2.3 provided that the hourly rate of pay for someone in the driver's classification for the year 2008/9 was $18.95 per hour.
· Clause 4.1 made provision for overtime rates of pay, and created an obligation for employees to work reasonable overtime.
· Clause 6.1.1 required all employees to wear personal protective equipment as required and directed by the employer.
· Clause 6.1.2 made provision for the issue to all field based employees of a company uniform comprising orange safety shirts and a Gradco peak cap.
· Clause 6.3.3 required employees to take reasonable care of their own health and safety, and that of their fellow workers "at the job site".
· Clause 6.6.1 made provision for the inspection of bags, containers and other personal property of an employee "brought onto the job location".
· Clause 6.19.1 provided, "Vehicles are allocated on a job to job basis at Gradco's discretion. Gradco is committed to making every effort to transport employees to distant sites. It is expected that employees have their own transport to get to work within their employed radial area, nominated as a 30km radius."
· In cl 6.20, under the heading "Own Transport", cl 6.20.2 provided, "Traveling [sic] to work outside the 30km radial area to which they are employed but within 50km radially shall entitle the employee to a daily travel allowance of $15.00. In addition an employee shall be paid at normal time rates after traveling [sic] over the 30km radial area."
· Clause 6.20.3 provided that travel to work outside the 50km "radial area" ie more than 50km from the worker's home as the crow flies, was to be "negotiated and agreed upon prior to such occurring".
· Under the heading "Employees Traveling [sic] in Gradco Supplied Vehicles", cl 6.21.1 included the following:
"(i)No allowance shall be payable for travel within home radial area.
(ii)For travel outside the radial area, an employee shall be compensated for time from the edge of the radial area to the job, twice per day, payable at ordinary rate of pay, to the nearest 15 minutes."
· Clause 6.21.2 provided that the employer's policy was to provide accommodation and three meals per day, and that a daily travel allowance of $25 would be paid to each employee "affected through an overnight stay away from their normal residence".
· Clause 6.23 provided that if an employee was provided with the employer's vehicle to use, he was responsible for keeping a logbook up to date; notifying any servicing or maintenance requirements; weekly washing, cleaning and maintaining of the vehicle; keeping the vehicle locked when not in use; reporting any damage or traffic incidents; and monitoring and checking water, oil, brake fluid, hydraulics, tyre air pressure and all external lights on a daily basis, or when filling the vehicle with fuel.
· Clause 6.24.1 prohibited employees from carrying passengers in the employer's motor vehicles unless the passengers were fellow employees, or unless they were family and friends who were being carried outside working hours.
Mr Buckingham lived at Winkleigh in northern Tasmania, a few kilometres west of Exeter, and nearly 30 kilometres north of Westbury. The distance from his home to the worksite near Rosebery was a great deal further than that. He was provided with a copy of the AWA and a map showing his 30 kilometre "radial area". In other words, a circle was drawn on the map with Winkleigh at its centre and a radius of 30 kilometres. The result of the provisions of the AWA was that when Mr Buckingham was travelling from Winkleigh to Rosebery, as a driver or passenger, he was not entitled to payment for his travelling time within the circle, but he was entitled to $18.95 per hour once he was outside the circle. On the day of the accident, he was entitled to payment at that rate for the whole of the time that Mr Cook was in the vehicle, because Mr Cook entered the vehicle outside Mr Buckingham's "radial area".
Mr Cook lived at Lower Barrington, over 120 kilometres from the worksite but substantially closer to it than Winkleigh. On the morning of the accident, he drove his own car to the nearby town of Sheffield, left it there, and was picked up by Mr Buckingham on his way from Winkleigh. As was the case with Mr Buckingham, Mr Cook was not entitled to payment for his travelling time so long as he remained within 30 kilometres of his home at Lower Barrington, but he was entitled to $18.95 per hour once he was outside the 30 kilometre "radial area" that applied to him.
While working on the Bobadil Dam project, both men normally travelled from their homes on a Monday morning, spent four nights in accommodation at Rosebery, and travelled back to their homes after finishing work on a Friday afternoon. Whilst in Rosebery, employees normally stayed Monday to Thursday nights inclusive in accommodation paid for by Gradco. It also paid for their meals.
When they reached Rosebery on a Monday morning, they went first to their place of accommodation and dropped off their bags; then went to the Zinifex office, where they entered their names and arrival times and signed their names in a book before going on site; then travelled for 10 to 15 minutes to the Bobadil site; and there "tagged in" with their employer. Their shifts started when they tagged in at the Bobadil site.
The learned judge found that during Mr Buckingham's time at the Bobadil site, he sometimes travelled on Mondays and Fridays in his own vehicle, but sometimes had the use of a company utility. That finding appears to have been erroneous. It was not completely clear, but the effect of Mr Buckingham's evidence seems to have been that for about three quarters of his time when working at Rosebery, he travelled there and back as a passenger, probably in a Gradco vehicle driven by another employee, and on the other occasions he drove a Gradco utility. He was offered that utility by his supervisor, Tom Diprose, who told him that he would sometimes have to pick up other employees, and that he could use it for private purposes, including on weekends, but he was not to travel long distances in it for private purposes. The employer provided the fuel for the vehicle.
Arrangements for transporting other employees in company vehicles were sometimes made by supervisors, and sometimes made between workers. Sometimes a supervisor would ring the driver during a weekend to arrange for him to pick up another worker on a Monday morning. Sometimes such arrangements were made before the weekend. Arrangements to carry passengers on Fridays were more frequently made between workers than were arrangements for passengers to be carried on Monday mornings. If workers made transport arrangements, they would let the supervisor know. I infer that the purpose of doing so was to enable the supervisor to monitor and make sure that necessary travel arrangements had been made for all employees working at the particular worksite.
Employees completed and submitted time sheets containing details of the travelling times for which they were entitled to payment. Workers travelling in company vehicles were paid for their travelling time outside their 30 kilometre "radial area" in accordance with cl 6.20.2 of the AWA, but only at their ordinary time rates of pay, even if they had been working overtime before leaving for home on a Friday afternoon. When travelling to work on a Monday morning, they were paid under cl 6.20.2 for their travelling time, other than when still within their "radial area", up to the time they "tagged in" at the Bobadil site.
Workers travelling as passengers and being paid for their travelling time sometimes went to sleep. The driver was not required to wear a company uniform when driving. He was free to choose his own route. There were various routes taken by Mr Buckingham from Winkleigh. For example, if he wanted a cup of coffee on the way to Rosebery he would drive via Westbury so that he could purchase one at Andy's Bakery there. He generally passed through Sheffield and along the road that passes close to Cradle Mountain, but sometimes went by the Murchison Highway through Hampshire when weather was bad. The effect of his evidence was that he was not obliged to travel to Rosebery on a Monday morning and instead, was free to travel there on a Sunday if he chose to do so. He was not asked whether he would have been able to exercise that choice if his supervisor asked him to pick up another employee on the Monday morning.
Mr Cook's evidence was that he was not compelled to travel with a particular driver. He always had the choice of taking his own vehicle. However, I infer that if he took it, he would not have been entitled to payment for the costs of doing so unless he and his supervisor had agreed what he would be paid. There were some drivers with whom he chose not to travel as a passenger because he had concerns that their driving was not safe. He usually travelled in a company vehicle driven by another. The travelling arrangements were fairly casual. He was never directed to use Sheffield as the place from which to pick up a lift. Sometimes his travelling arrangements were made for him by his supervisor, and sometimes they were made directly with the person who was to drive him. He accepted that he would probably have had to tell his supervisor whenever he intended to use his own vehicle, but he said that taking his own vehicle was never an issue and he was never instructed not to take it.
Mr Buckingham's evidence was that there were seven employees of Gradco who worked on the Bobadil Dam project. He did not explain who they all were, but he referred to his supervisor, Tom Diprose, who travelled from Launceston to Rosebery in a company vehicle and was available to give someone a lift, an employee who lived at Smithton and travelled to Rosebery on his own in a company vehicle, and another who lived in Rosebery and did not require transport. He said that when going from the place of accommodation at Rosebery to the Bobadil Dam worksite, he did not always travel in the vehicle he had driven from Winkleigh. On some days, the leading hand would pick him and other employees up. But on Fridays, he drove the vehicle to the worksite so that at knock-off time he could head directly for home. Whichever vehicle was used to transport employees to work at the Bobadil Dam from Rosebery, it was always a vehicle belonging to Gradco.
Concerning the journey when Mr Cook suffered his injuries, Mr Cook accepted in evidence that his supervisor, Mr Diprose, may have organised for Mr Buckingham to pick him up that Monday morning, but he could not remember. To similar effect was Mr Buckingham's evidence that he did not exactly recall but was pretty sure Mr Diprose organised it by telephone on the Sunday night. I infer that the purpose of cl 6.20.3 of the AWA, which provided that "travel outside the 50klm radial area to which an employee is at the time employed shall be negotiated and agreed upon prior to such occurring", was to permit the employer to monitor the arrangements, ensure that all employees were able to get to and from the worksite, and control the cost to the employer of transporting them all. The employer's undertaking in cl 16.19.1 was to make every effort to transport employees to distant sites. Obviously, if each employee travelled in a separate vehicle the total cost of transporting them all would have been considerable, compared to if vehicles were shared.
There was no dispute between the parties concerning the legal principles that apply to the determination of the issue. The question whether an employee was acting in the course of his employment for the purposes of vicarious liability at common law is a question of fact dependent entirely upon the circumstances of the case. Bugge v Brown (1919) 26 CLR 110 at 121; United Africa Co Ltd v Saka Owoade [1955] AC 130 at 144; Rambarran v Gurrucharran [1970] 1 All ER 749 at 754; Greenwood v Commonwealth of Australia [1975] VR 859.
For the purposes of determining the facts, no question arises concerning the credit of the witnesses. As a result, this Court is in as good a position as the trial judge to find facts and draw inferences established by the evidence. In deciding what is the proper inference to be drawn, the Court should give respect and weight to the conclusions of the learned judge but, once having reached its own conclusions, it should not shrink from giving effect to them. Warren v Coombes (1979) 142 CLR 531 at 551. The Court must decide the case – the facts as well as the law – for itself. In so doing it must recognise the advantage enjoyed by the trial judge. But if the Court considers that in the circumstances the judge was in no better position to decide the particular question than the members of the Court are themselves, or if, after giving full weight to his decision, they consider it was wrong, they must give effect to their own judgment. Warren v Coombes at 552 – 553.
Although the case concerned workers compensation legislation, what was said in Henderson v Commissioner of Railways (Western Australia) (1937) 58 CLR 281 at 294 by Dixon J applies equally to the question of what is the course of employment for the purposes of vicarious liability at common law. Dixon J said:
"Cases of this description are never easy. The general principle governing the ascertainment of the 'course of employment' appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. … Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer's premises and work as an ordinary member of the public is another matter of weight ...".
The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his ordinary or overtime work. Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 483. However, that perception is not always determinative, as can be seen from the outcome of that case and from the passage just cited from Henderson v Commissioner of Railways (Western Australia).
Generally speaking, travelling by an employee between his or her place of residence and place of work is not in the course of the employment. Examples of the application of that principle are to be found in Commonwealth of Australia v Cocks (1966) 115 CLR 413 and Harrison v British Railways [1981] 3 All ER 679. It was because of such a general rule that the Workers Compensation Act 1988, s25(5)(d), was inserted to deem that any injury suffered by a worker when travelling in either direction between his or her place of employment and his or her place of residence arose out of and in the course of the employment[3].
[3] That provision has largely been reversed by the Workers Rehabilitation and Compensation Act 1988, s25(6) and (7).
In Vandyke v Fender [1970] 2 QB 292, the Court of Appeal applied the general rule to a situation where an employee was injured in an accident caused by the negligent driving of another employee, when they were travelling between work and home in a vehicle loaned by the employer on terms that either the driver or the injured man would drive them, and two other employees also, to and from work. Although the arrangement for the car was part of the driver's contract of service, as it was here, the contract did not oblige him to use the car. He could choose not to use it. But if he did use it, under the contract of service he was to bring the other three if they desired to come by car. After reviewing what he regarded as leading cases, St Helen's Colliery Co Ltd v Hewitson [1924] AC 59 and Weaver v Tredegar Iron & Coal Co Ltd [1940] AC 955, Lord Denning MR concluded at 305 that they showed:
"… quite conclusively that when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment – unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in the vehicle, or to be permitted to travel in it. He must have an obligation to travel in it. Else he is not in the course of his employment. That distinction must be maintained: for otherwise there would be no certainty in this branch of the law."
The other members of the Court of Appeal were of the same view.
In similar vein was the following statement of Lord Porter in Weaver v Tredegar Iron & Coal Co Ltd (supra) at 990 – 991:
"In the ordinary case when a workman is employed on his master's premises he ceases to be in the course of his employment when he has left those premises and reached the public street. And equally he may have left those premises if he reaches a place which is not public but from which he like others who are not engaged in the same employment can proceed to his home. Nor in my view does it make any difference that when he reaches the public street he is conveyed from the premises in a coach provided by his employer, nor that when he reaches the place which is not public he is carried in a railway train or other conveyance for the provision of which his employer has made the necessary arrangements. In either of the latter cases he is not in the course of his employment though he is using facilities for reaching his home which are granted to him by his employer."
It was the fact that the employee in that case was not compelled by the contract of service to travel in that way that prevented the journey occurring in the course of the employment.
Of the same mind was Eveleigh J in Nottingham v Aldridge [1971] 2 QB 739 at 747 – 748:
"He was a servant, but he was not driving in the course of his employment. Although the first defendant received payment because he carried a passenger he was not, to use Lord Denning MR's words [1970] 2 QB 292, 303[4], 'a paid driver.' He was under no obligation to drive or to carry, but, having carried, he then became entitled to an allowance. While it was necessary for him to travel to his place of work he owed no obligation to his employers other than to present himself for duty; the mode of travel, the time of travel and the route were at his discretion. The second defendants [the employers] had no right to control any of his actions at the relevant time, and they had no right to dictate how he should drive."
[4] Vandyke v Fender
Like the learned trial judge, I find those United Kingdom cases helpful. His Honour also reviewed a number of this country's cases[5] and found them less helpful, because their facts were not "parallel" to those in this case. His Honour's reference to "parallel facts" came from the following passage in Fleming's The Law of Torts, 10th ed, 2011, at 450:
"'The course of employment' is an expansive concept which provides ample scope for policy decisions and, despite the vast volume of case law, has failed to acquire a high degree of precision. No statistical measurement is possible, and precedents are helpful only when they present a suggestive uniformity on parallel facts."
[5] Comino v Lynch [1959] QWN 49, Joss v Snowball (1969) 72 SR(NSW) 218, Commonwealth v Cocks (1966) 115 CLR 413 and Greenwood v Commonwealth of Australia [1975] VR 859.
With reference to the principles to be found in the United Kingdom cases, the learned judge reached his conclusion regarding the issue I am considering at par[33] of his judgment:
"I return to the facts of this case. I am not satisfied that the driver had a contractual obligation to transport himself or Mr Cook to Rosebery or to the Bobadil Dam site on the morning in question. Their only contractual obligations were to present themselves for work at the required places and times. They were free to choose their own routes, and means of transport, to and from job sites. Their remuneration for their travelling time was in the nature of an allowance, as distinct from payment for the work that they were engaged to perform. That is why they were only ever paid at the ordinary time rate for their paid travelling time, even after working at overtime rates on a Friday afternoon or evening. The driver was employed to operate an excavator, and not to be a chauffeur. It would be absurd if, on days when they travelled, their employment began or ended when they crossed an imaginary line representing the limit of a 30Km 'radial area'. It must follow that the driver was not acting in the course of his employment when Mr Cook was injured; that the employer was therefore not vicariously liable for his negligent driving for the purposes of s138AA(3); that his negligence therefore did not constitute negligence on the part of an employer for the purposes of s138AA(1)(a); that the provisions of s138AB therefore do not apply to Mr Cook's claim for damages; that the defence under that section pleaded by the driver must therefore fail; and that Mr Cook's action must therefore succeed."
Counsel for the Board attacked those conclusions in the following way. He submitted that Mr Buckingham "was not going about his own business" but was "using the Gradco vehicle for his employer's benefit in getting himself and Cook to Rosebery to carry out work for the employer". The second part of those submissions is correct. That employees were able to get to work benefited the employer. However, it was incorrect to say that Mr Buckingham was not going about his own business. By travelling to Rosebery, so that he could start work there, he was going about his own business.
It was submitted for the Board that Mr Buckingham "was also getting Gradco's vehicle to Rosebery where it would be used to transport employees from the accommodation to the worksite". That is a spurious proposition. The truth is that his employer provided the vehicle to him for his use to travel home from work at the end of the working week, to return to work at the commencement of the following week, and to have the use of the vehicle for private purposes. There was limited evidence that when the vehicle was at Rosebery, it was used to transport employees to the worksite. The state of the evidence was that company vehicles were used for that purpose.
It was further submitted: "If he was acting only for his own benefit he would not have picked up Cook." It is true that he would not have had the benefit of his employer's vehicle to get to and from work and for private use, unless he agreed to transport another employee to work if requested to do so. In that way he was benefiting and his employer was benefiting. But the fact that the employer benefited from having its employees transported to and from work, is not determinative of the issue before the Court. It is, of course, relevant.
Counsel for the Board submitted that "this was an incident of his employment and what he was 'required, expected or authorized to do in order to carry out his duties'[6]." It was also submitted that the mode of transport, time of travel and route taken were not at Mr Buckingham's discretion and that conversely, he was obliged to travel in the particular vehicle and to pick up Mr Cook at Sheffield, unless his employer agreed otherwise. However, Mr Buckingham was not required by his contract of service to travel in that particular vehicle at all. He was entitled to travel in some other way, if he so chose. The mode, time and route of travel was not dictated by his employer. It was up to him whether he accepted the offer of the use of the vehicle and the terms of the offer.
[6] Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, per Dixon J at 133.
The learned judge was correct when he concluded that Mr Buckingham did not have a contractual obligation to transport himself or Mr Cook to Rosebery or the Bobadil Dam site on the morning in question. Each had a contractual obligation to present himself for work at the required place and time. Each was free to choose his own route and means of transport to and from job sites, notwithstanding that if an offer of a company vehicle was accepted, it might be required that another employee be carried in it.
It should not be accepted that the employee who travelled on his own from Smithton in a company vehicle may not have been acting in the course of his employment, but one who transported a fellow employee with him was so acting. The making of such a distinction would be bordering on disingenuity.
The conclusions of the learned judge cannot be faulted. They are consistent with a settled line of authorities in the United Kingdom, and not inconsistent with authorities in this country.
Conclusion
For those reasons, the sole ground of appeal fails and the appeal should be dismissed. It is unnecessary to deal with other issues that would have had to be addressed if the ground had succeeded.
File No 757/2012
MOTOR ACCIDENTS INSURANCE BOARD v RUSSELL DAVID COOK
and RONALD FREDERICK BUCKINGHAM
REASONS FOR JUDGMENT FULL COURT
TENNENT J
25 February 2013
I have had the benefit of reading in draft form the reasons of his Honour the Chief Justice. I agree with those reasons and would also dismiss the appeal.
File No 757/2012
MOTOR ACCIDENTS INSURANCE BOARD v RUSSELL DAVID COOK
and RONALD FREDERICK BUCKINGHAM
REASONS FOR JUDGMENT FULL COURT
WOOD J
25 February 2013
I agree with the reasons for judgment of Crawford CJ. The appeal should be dismissed.
7
1