MT Smith, JK Williams t/as Harris Wheeler Lawyers v Mason
[2009] NSWWCCPD 106
•26 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Reported Decision: MT Smith, JK Williams (t/as Harris Wheeler Lawyers) v Mason (2009) 7 DDCR 514 | ||||||
| CITATION: | MT Smith, JK Williams t/as Harris Wheeler Lawyers v Mason [2009] NSWWCCPD 106 | |||||
| APPELLANT: | MT Smith, JK Williams t/as Harris Wheeler Lawyers | |||||
| RESPONDENT: | Michelle Mason | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-658/09 | |||||
| ARBITRATOR: | Mr R Foggo | |||||
| DATE OF ARBITRATOR’S DECISION: | 30 April 2009 | |||||
| DATE OF APPEAL DECISION: | 26 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 10 of the Workers Compensation Act 1987; periodic journey; deviation for a purpose connected with employment; material increase in risk of injury. | |||||
| PRESIDENTIAL MEMBER: | Keating P | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sparke Helmore | ||||
| Respondent: | Braye Cragg Solicitors | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 30 April 2009 is confirmed. The Appellant is to pay the Respondent’s costs of the Appeal. | |||||
BACKGROUND TO THE APPEAL
On 25 May 2009, M T Smith, J K Williams trading as Harris Wheeler Lawyers (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 April 2009.
The Respondent to the Appeal is Michelle Mason (‘Mrs Mason/the Respondent’).
Mrs Mason is the widow of Dominic Bernard James Mason (‘Mr Mason/the worker’).
Mr Mason was employed by the Appellant as a solicitor and worked from premises located in Scott Street, Newcastle. It was his usual practice to ride his bicycle to and from work each day from his home at Rankin Park a suburb about 9.9 kilometres from Scott Street. The only exceptions to that practice occurred during extreme weather conditions or if he was required to attend court outside of the Newcastle CBD.
Mr Mason was a member of the Kooragang Open Cycle Club. Every Tuesday and Thursday various members of the club, including Mr Mason, participated in what has been described as a ‘training ride’ from John Hunter Hospital at New Lambton Heights Newcastle to Swansea and return. The round trip was approximately 44 kilometres.
On Tuesday 11 December 2007, during one of the training rides Mr Mason was fatally injured as a result of a collision between the bicycle he was riding and a semi trailer on the Pacific Highway at Blacksmiths. Mr Mason had been riding in a group of approximately 19 cyclists in the breakdown lane, when the driver of the semi trailer, who was under the influence of illegal drugs, veered off the highway and came into contact with Mr Mason.
It was Mr Mason’s usual practice after completing the ride to Swansea to continue on to his place of employment in Newcastle. The route he took varied, sometimes he would peel off from the group and ride directly to work or he would complete the ride by returning to the John Hunter Hospital and then cycle to work. On some occasions he returned to his home to collect certain belongings and on other occasions he would stop for coffee, en route, before proceeding to work.
On the day of his death, Mr Mason had said to his colleague Mr Glendenning, that he intended to join Mr Glendenning and a group of other riders for coffee at the ‘Three Beans’ coffee shop at Beaumont Street, Hamilton. According to Mr Glendenning it was Mr Mason’s invariable practice on the occasions that he attended the ‘Three Beans’ coffee shop after a training ride to proceed from there directly to his office in Newcastle to commence work.
Mr and Mrs Mason and were married on 15 March 1997. There are two children of the marriage, a daughter, born 18 December 2002 and a son, born 15 December 2005.
Mrs Mason claimed benefits under section 25 and/or section 26 of the Workers Compensation Act 1987 (‘the 1987 Act’). The application was denied by QBE Workers Compensation (NSW) Ltd, acting on behalf of the Appellant, on 31 July 2008, on the basis that Mr Mason’s death did not arise during the course of, or out of his employment, and employment was not a substantial contributing factor to his death. Alternatively, Mr Mason died during an interruption of, or deviation from, a journey to work.
An Application to Resolve a Dispute (‘Application’) was filed on behalf of Mrs Mason in the Commission on 29 January 2009. She claimed lump sum benefits in the sum of $425,000 pursuant to section 25(1)(a) and/or section 26. A further claim was made for weekly benefits in the sum of $228.00 per week from 11 December 2007 to date and continuing pursuant to section 25(1)(b). The dependents listed included Mrs Mason and her two children.
A Reply to the Application was filed on behalf of the Appellant, by leave, on 23 February 2009.
The matter came before an Arbitrator for a conciliation/arbitration hearing on 7 April 2009 in Newcastle. The decision was reserved and determination and Statement of Reasons (‘Reasons’) was delivered on 30 April 2009, the Arbitrator finding in Mrs Mason’s favour.
On 25 May 2009 the Appellant sought leave to bring an ‘Appeal Against Decision of Arbitrator’ against that decision.
An amended Certificate of Determination was issued on 7 August 2009, following further submissions by the parties in respect of apportionment of the lump sum and interest. This is not the subject of any dispute between the parties.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 April 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1. The Deceased’s death was not as a result of any injury sustained arising out of or in the course of his employment with the Respondent.
2. The Deceased’s employment with the Respondent was not a substantial contributing factor to the injuries, which caused the Deceased’s death
3. At the time of his death the deceased was undertaking a periodic journey between his place of abode and place of employment.
4. The Deceased was injured during a deviation of such journey
5. The deviation was connected with the Deceased’s employment with the Respondent.
6. The deviation did not materially increase the risk of injury to the Deceased
7. This matter is remitted to the Registrar for the appointment of a telephone conference to determine the questions of interest and apportionment pursuant to Section 29.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a) whether Mr Mason was undertaking a periodic journey between his place of abode and place of employment at the time of his death;
(b) if Mr Mason was on a periodic journey, were the injuries sustained whilst on a deviation connected to his employment, and
(c) if Mr Mason was on a deviation at the time of the accident, did it materially increase the risk of injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions 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
Before proceeding to deal with an appeal the Commission must determine whether the appeal meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is such that the thresholds as specified in section 352(2)(a) and (b) have been met.
The requirements as to time and monetary thresholds specified in the 1998 Act have been satisfied. Having regard to the arguments raised I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator consisted of:
(a) the Application to Resolve a Dispute and attached documents;
(b) the Reply;
(c) statement of Mr Glendenning of 28 February 2009;
(d) statement of Mr Smith and attachments dated 7 April 2009, and
(e) material produced by the Appellant pursuant to a Notice for Production. These documents concerned the Appellant’s support for cycling and other sports and expenditure on promotional items.
There was no oral evidence before the Arbitrator.
DISCUSSION AND FINDINGS
Mrs Mason’s Evidence
Mrs Mason provided a signed statement dated 3 September 2008. She stated that the accident occurred on the Pacific Highway near the intersection of Maneela Street Blacksmiths, which is just north of Swansea, about 22 kilometres from Scott Street Newcastle.
Mrs Mason states that it was her husband’s practice to ride his bicycle to work every day. On Tuesdays and Thursdays he rode with a group of other bicycle riders. They met in the vicinity of the John Hunter Hospital. They would follow the Charlestown bypass to the Swansea roundabout and then return via the Pacific Highway.
Mr Mason took a week’s supply of shirts to work every Monday. He would leave his suits and shoes at work. He would then ride to work, shower and change at the Harris Wheeler premises. Mrs Mason confirmed that she had read the statement of Mr Brian Glendenning of 11 January 2008 and confirmed its contents to be true insofar as they related to her husband’s usual habits.
Mrs Mason stated that she believed on the morning of the accident her husband was intending to meet a group of other cyclist known to him. They were to meet at the water tower opposite of the John Hunter Hospital and ride down the Charlestown bypass to the Swansea roundabout where they would turn around and come back to Newcastle via the Pacific Highway. Mrs Mason conceded that she was not certain of her husband’s specific intentions from that point on.
Mrs Mason gave evidence about the extent of her dependency on the deceased, which is not an issue in this appeal.
Mr Brian Glendenning is a partner of Harris Wheeler Lawyers. He has been so employed for 14 years. He provided a statement of evidence dated 11 January 2008.
Mr Glendenning was familiar with Mr Mason and had known him since 6 January 2003, when Mr Mason commencement employment with Harris Wheeler. Mr Mason reported either to him or another partner Mr Tony Cardillo.
Mr Mason normally worked from 8:30am to 6pm, Monday to Friday. The hours varied according to workload. He would frequently work from home and also attended the office on weekends from time to time. Mr Mason was a qualified solicitor.
Mr Glendenning confirmed it was Mr Mason’s normal practice to ride his bicycle to and from work each day. Exceptions to that practice would be extreme weather conditions or if he was required to attend court outside the Newcastle CBD.
Mr Mason was a member of the Kooragang Open Cycle Club Inc. Mr Glendenning is the secretary of the club, which has approximately 190 members. Mr Mason had been a member of that club since joining in 2007. He invariably wore a crash helmet. Training rides are not organised or sanctioned by the club.
According to Mr Glendenning Mr Mason was a regular rider/participant in the rides that departed from the water tower opposite John Hunter Hospital, then proceeded through the Charlestown bypass to Swansea roundabout and return to the hospital. The ride departed every Tuesday and Thursday at 6am. Subject to weather conditions, Mr Mason normally participated in the ride every Tuesday and every second Thursday.
Mr Glendenning stated that Mr Mason’s practice on the mornings he participated in the training rides changed from week to week. Sometimes he would deviate en route to the final destination, ‘peeling off’ at Carney Avenue and riding directly to work. On other occasions he would ride to John Hunter Hospital, conclude the ride and then ride to work. On occasions Mr Mason rode from John Hunter Hospital to his home address, collected something, and then rode his bicycle to work. Harris Wheeler Lawyers provided showering facilities and change rooms for the use of all staff. Mr Mason kept a change of clothes at work for such purposes.
On 11 December 2007 when Mr Glendenning joined other riders at the top of Blackbutt Reserve, Mr Mason was already present. Mr Glendenning and Mr Mason rode next to each other until reaching Jewells Hill on the Pacific Highway at Belmont. The group changed at that point and the riders rotated. Riders at the front rotated in a circular fashion, which, according to Mr Glendenning, is standard procedure of all training rides. The group continued on to Swansea cycled around the roundabout and then commenced to ride north towards John Hunter Hospital.
Mr Glendenning stated that the group crossed Swansea Bridge at about 6:30am. The traffic conditions were fairly light. The weather conditions were fine and dry.
Mr Glendenning stated that as the group approached the site of the accident they were cycling two abreast with the riders rotating their positions. All riders were positioned to the left completely within the confines of the sealed shoulder and the solid white line. He subsequently checked his heart rate monitor and believed that the group were travelling at the speed of 44 km/h. How that speed was derived from reference to the heart rate monitor is not in evidence. Mr Glendenning was positioned towards the rear of the group, about two or three positions from the rear on the outside of the group. Mr Mason was positioned towards the front of the group either in the second or third position, also on the outside.
Mr Glendenning first became aware of a truck when it passed him. He sensed the bullbar or bumper ‘close’ to him. He was concerned about the closeness of the truck but did not consider himself in immediate danger. He states that he was aware that all riders were within the marked white line and the truck was just on the other side, that is, the right hand side of the white mark line. He looked forward and saw that the riders ahead of him were all in a straight line and he formed the impression that the truck would overtake them. He noticed the truck commenced to slowly ‘drift’ across towards the group. When the cabin of the truck reached Mr Mason’s position he saw Mr Mason’s right shoulder ‘tense’ as though he was attempting to move his body away from the truck. Mr Glendenning saw the trailer section of the truck had crossed over the white line. He did not see the impact with Mr Mason or any other rider. He saw Mr Mason commence to tumble to the ground.
Mr Mason was rendered first aid at the scene. He was conveyed to John Hunter Hospital but did not regain consciousness. Mr Glendenning expressed the opinion that Mr Mason was following his normal route to work on the day of the accident. He was wearing cycling pants and a yellow cycling jersey provided by Harris Wheeler advertising ‘Harris Wheeler Lawyers’.
Mr Glendenning further stated that during the course of the ride he asked Mr Mason if he was ‘coming for coffee’ after the ride. Mr Mason said that he intended to join the group for coffee. This was a regular activity. The group normally attended the ‘Three Beans’ coffee shop at Beaumont Street, Hamilton to discuss work-related and other matters. On each and every occasion that Mr Mason attended at the ‘Three Beans’ coffee shop after a training ride he always rode from that location to his office in Newcastle to commence duties.
Mr Glendenning made a further statement dated 11 January 2008. It dealt with the Appellant’s promotion of cycling. He stated:
“1. Harris Wheeler Lawyers strongly promoted cycling in the following ways:
(a) We sponsored the Kooragang Cycling Club.
(b) We entered teams in various cycling and triathlon events.
(c) Provided cyclists to those events with Harris Wheeler shirts.
(d)We had a dedicated area at Harris Wheeler Newcastle office where cyclist could leave their bicycles and gear.
(e)In our capacity as the Solicitors for Newcastle City Council, we have been involved in promoting cycling within the Newcastle area. In particular our “Cycling Lawyers” have been involved in various stories in the print media and radio promoting cycling.
2. In general terms we consider our involvement in cycling to be an important business networking opportunity.” (emphasis added)
Matthew Smith, a partner of Harris Wheeler Lawyers, provided a statement dated 7 April 2009. Mr Smith was familiar with Mr Glendenning’s statement and was familiar with the route taken by Mr Mason on the day of the accident. He had cycled on many occasions as a member of the training group. Mr Smith stated that the route taken consisted mainly of arterial roads, which were multi-lane and which mostly, had a breakdown lane. The route was chosen for safety reasons.
Mr Smith stated that he was aware of the most direct route between Mr Mason’s home at Rankin Park and Newcastle city involving a route along McCaffery Drive, Lookout Road, Russell Road, Lambton Road, Belford Street and King Street. This route is depicted in map ‘A’ attached to Mr Smith’s statement, which was extracted from the “whereis.com” website. It shows a distance of 9.9 km and an estimated time of travel, by car, of 15 minutes. Attachment ‘B’ to Mr Smith’s statement is another map also taken from the “whereis.com” website, it shows the route taken by Mr Mason on 11 December 2007 from John Hunter Hospital to Swansea to be approximately 22.2 km and an estimated time of travel, by car, of 27 minutes.
Mr Smith described both routes. That is, the training route and the direct route between Mr Mason’s home and work as involving major arterial roads with a significant proportion of both routes having a “breakdown” lane.
In response to a ‘Notice for Production’ the Appellant produced a series of newsletters issued at six monthly intervals between Spring 2004 and Autumn 2006. Seven newsletters were produced. With one exception, all of them recorded the participation of members of the Appellant’s law firm in triathlon, swimming or cycling events.
Also, in response to a ‘Notice for Production’, the Appellant produced a series of invoices and receipts dated between October 2003 and February 2009 relating to the purchase of various sporting goods or equipment. These included invoices for the purchase of cycling jerseys and cycling pants, a bicycle stand, a Marquee, entry fees for various sporting events and the printing of the Appellant’s promotional material on cycling jerseys and pants. The expenditure was in the order of $13,500.00.
The police report of the accident contains a description of the accident consistent with Mr Glendennings’ description, but notes at page 4 that the driver of the truck that collided with Mr Mason was affected by “three cones of cannabis”.
Appellant’s Evidence
There was no evidence filed for the Appellant either before the Arbitrator or on appeal.
THE ARBITRATOR’S REASONS
After reviewing the evidence and reserving his decision, the Arbitrator provided a Statement of Reasons (‘Reasons’) that are summarised below:
(a) the Arbitrator was not persuaded that Mr Mason sustained injury arising out of or in the course of his employment. He took into account the Appellant’s promotion of cycling including the facilities made available at the workplace to leave bicycles and store gear. He noted Mr Glendenning’s evidence that the firm’s involvement in cycling provided an important business networking opportunity. He also noted the mere promotion and enthusiasm for cycling, which the Appellant manifested, was not sufficient for any form of cycling to come “within the course of employment” (see WorkCover Authority (NSW) v Billpat Holdings Pty Limited (1995) 11 NSWCCR 565).
(b) “scope of employment” is limited to what an employer has “expressly or impliedly induced or encouraged” see Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 (‘Hatzimanolis’). The Arbitrator found that there was no evidence that the Appellant actively induced or encouraged Mr Mason to be a cyclist, other than by making space available in its office for him and other employees to store bicycles and gear. Although Mr Mason was wearing a Harris Wheeler cycling vest at the time of his death he was entitled to wear it as a member of the Kooragang Cycling Club. There was no evidence that it was provided because he was an employee of the Appellant. Accordingly, the Arbitrator found that the injury did not arise out of or in the course of Mr Mason’s employment with the Appellant;
(c) the Arbitrator concluded that if his finding in relation to injury was incorrect Mr Mason would not have satisfied the requirements of section 9A of the 1987 Act. He considered the observations of Mason P in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138 at [22] the words “employment concerned” in section 9A reinforced the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The Arbitrator considered the examples referred to in section 9A(2). He found that although the Appellant sponsored a cycling club and made facilities available to employees who cycled to work none of these or any other actions on behalf of the Appellant in promoting cycling was substantial enough to be characterised as a substantial contributing factor to Mr Mason’s death;
(d) the Arbitrator was satisfied that Mr Mason was on a periodic journey at the time of his accident. He found that there was no dispute that Mr Mason rode his bicycle to and from work every day and that on Tuesdays and Thursdays (sic every second Thursday) he joined other riders on the ride from John Hunter Hospital to Swansea via Charlestown (Vetter v Lake Macquarie City Council [2001] HCA 12 (‘Vetter’));
(e) the onus was on the employer to establish there had been an interruption of a kind which would put an end to the entitlement to compensation for the rest of the journey (Napoli v Arthur H Stephens (NSW) Pty Ltd [1970] 1 NSW LR 125);
(f) having regard to Mr Glendenning’s evidence concerning the promotion of cycling and the fact that Mr Mason was wearing a riding shirt with the Appellant’s livery printed on it was sufficient to find that any interruption or deviation was made for a reason connected with Mr Mason’s employment with the Appellant, and
(g) if the training run was unconnected to Mr Mason’s employment, he was on a deviation where the risk of injury was not materially increased by reason of the deviation.
SUBMISSIONS, DISCUSSION AND FINDINGS
Was Mr Mason on a periodic journey?
Appellant’s submissions
The Appellant submits that:
(a) Mr Mason was on a training ride with the Kooragang Cycling Club at the time of his death and not on a periodic journey;
(b) the real character of this journey, which added some 20 extra kilometres to the worker’s trip, took place well before office hours, took him on a path in the opposite direction to the usual trip, and usually ended with a break at a cafe in Hamilton, was that of a training ride of a person involved with a cycling club and not a periodic journey between his home and work;
(c) the purpose of the trip was to train for the worker’s participation in cycling events with the Kooragang Cycling Club and not for any event organised by the employer;
(d) the circumstances of this case fall neatly into the circumstances envisaged by Kirby J in Vetter and that Mr Mason’s death did not occur on a journey. The Appellant further submits that the deviation was so protracted and substantial and was for the purpose of a training ride, that it did not have the character of a periodic journey at all;
(e) the evidence of the witnesses in the matter and attached to the Application confirm that the worker was on a training ride with the Kooragang Cycling Club at the time of his death;
(f) the worker was employed as a solicitor and not as a cyclist, and the fact that the worker was on a training ride with other representatives of his firm, does not denote a connection with employment;
(g) the training ride had no temporal connection to work and took place at a time prior to normal office hours. It is submitted that the purpose of the training ride was to facilitate the worker’s membership of and performance in the Kooragang Cycling Club, and it was not connected to the actual employment as a solicitor, and
(h) there is no evidence to suggest that there was any requirement for the worker to be on the ride, and submits that the employer had other staff who had not ridden a bicycle for many years, indicating a lack of compulsion in the worker's decision to be on the training ride. The Appellant submits that this is consistent with there being only three riders from Harris Wheeler on the training ride, in a large group of cyclists, and emanating from a large firm in Newcastle. The Appellant further submits that if the training ride was connected to employment this would have been evidenced by a much greater participation by representatives of the firm.
The Appellant relies on Vetter, where Kirby J noted the following at [86]:
“Of course, a point will be reached where an interruption is greatly protracted, a deviation is very substantial or the purposes are wholly private or unknown. In such circumstances the ‘journey’ will never have had, or will during its course lose, the character of a ‘journey’ for the purposes of s 10 of the Compensation Act.”
The evidence established that the time of his death was well before usual office hours of a solicitor.
Respondent’s submissions
The Respondent submits that:
(a)the Appellant’s emphasis on the worker being on a ‘training ride’ at the time of his death involves an enquiry that is apt to mislead. It is not necessary to attempt a characterisation of the sole or main or dominant purpose of the activity in which the worker was involved; rather, one looks at the relevant purpose and disregards the others, as Glass JA observed in Hook v Rolfe (1986) 7 NSWLR 40;
(b)in any event, because Mr Mason was, as the Arbitrator found, on a periodic journey at the time he was killed the factual matters referred to by the Appellant (which go to enquiry arising out of or in the course of employment) are essentially irrelevant to the enquiry;
(c)the only conceivable relevance of such an attempt at characterisation might be if the activity was so far disconnected from the employment that it fell within Kirby J’s concept of a wholly private purpose, as referred to in Vetter. The journey on which Mr Mason was engaged cannot be characterised as “wholly private” because the activity upon which the worker was engaged was a regular periodic journey to work that he undertook each Tuesday, and
(d)the factors referred to by the Appellant, bear on injury “arising out of or in the course of employment” and are not relevant in cases involving injury to or the death of a worker whilst on a periodic journey.
The Respondent’s fundamental submission in answer to the Appellant’s contentions is that Mr Mason was in the course of a periodic journey at the time he was killed and therefore there was no deviation from the periodic journey he took each Tuesday and the question of any material increase in risk did not arise.
Discussion
Relevantly section 10 of the 1987 Act provides:
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A) …..
(1B) …..
(1D) …..
(2) Subsection (1) does not apply if:
(a) the injury was received during or after any interruption of, or deviation from, any such journey, and
(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(3) The journeys to which this section applies are as follows:
(a)the daily or other periodic journeys between the worker’s place of abode and place of employment,
(b)……”
The evidence clearly establishes that the journey being undertaken by Mr Mason at the time of his death was one that he undertook on Tuesday of every week and every second Thursday.
The facts in this case are, as the Arbitrator observed, strikingly similar to those in Vetter. In Vetter the worker’s residence was 38.9 km from her workplace, a journey by car, her usual mode of travel, was about 45 minutes or so. The worker had adopted a practice of calling upon her grandmother on a fortnightly basis after leaving work and before travelling home. The practice was a regular one from which she departed very rarely, if at all. In order to call upon her grandmother the worker was obliged to travel an additional 19km further than she would if she had travelled directly home. When the worker left her grandmother’s house it was dark and raining. During the journey between her grandmother’s home and her own home the worker collided with an unattended truck parked on the verge of the highway and was badly injured. The Court held that the primary judge made no error of law in deciding that the worker was undertaking a journey, properly to be described as a periodic journey between a place of employment and her place of abode within the meaning of section 10(3)(a). It was further held that the worker was injured after an interruption to or during a deviation from the journey. The Court did not disturb the findings of fact in her favour that in the circumstances of the case the risk of injury had not materially increased.
Kirby J in Vetter noted that the High Court had emphasised in a number of decisions that claims for compensation for injuries sustained on a journey as defined in the applicable Act may only succeed if the journey in question is properly classifiable as one between a specified origin and a specified destination. His Honour noted at [81] that that point was most clearly in Young v Commissioner for Railways [1961] ALR 258 (‘Young’).
In Young the worker left work early with the permission of his employer to attend to private business. There was no evidence as to what the worker did between 2:35 pm and 5:00 pm. At a later time he met another worker in a hotel and left with him at about 5:40 pm. Just before 6pm on the road leading to his home, the car he was driving was involved in an accident and he was killed. Dixon CJ said at [105]:
“It is clear that the road upon which the accident occurred led to the deceased’s home, and no one need doubt that he was then on his way home when the accident occurred. But that is not enough to satisfy the provision of the statute, which says that the journey must have been between the worker's place of abode and place of employment. Of course, as I have already shown, the proviso allows for interruptions, deviations and other breaks in the journey, but the journey must commence as a journey between the place of abode and place of employment.
It is, of course, plainly true that ultimately on that day he intended to reach home. That intention was no doubt present with him when he left to go to the works in the morning: it was probably an intention which he entertained day after day. But it does not follow that he was on the journey between the factory, the place of employment, and his abode. He obviously had some other destination which doubtless was intermediate, but was a destination at which he was going to transact business. The time is long. It is not a short time ... [It is] not right or in accordance with any probability of fact to treat that interval of time as a mere interruption of a journey which he commenced to go home. He commenced the journey to transact whatever business it was.”
In Vetter, Kirby J at [82] distinguished Young from the facts in Vetter on several bases. First, the route of the journey was known. It conformed to the worker’s “periodic” pattern. There was no gap in the evidence nor was there any suggestion that the worker had commenced the journey with some unidentified person or business in mind. The origin of the journey was undoubtedly the “place of employment”. The ultimate destination of the journey was the worker’s “place of abode”. His Honour held that whilst it is true that there was both an interruption of, and deviation from, the direct journey to the worker’s home there was no interruption or deviation from the journey home which she took each Friday fortnight to interpose a call on her grandmother.
His Honour held at [84] that the approach taken in Vetter by Handley JA in the Court of Appeal to categorise the journey as a private affair by considering (1) it involved travel in a direction opposite to the place of abode; (2) it increased the distance and time travelled significantly; and (3) it was for a private purpose having nothing to do with the employment, was mistaken [109]. He noted that the Act is intended to apply to employment journeys of workers in a great variety of employment and domestic situations. It provides a valuable benefit to such workers. “This benefit should not be narrowly construed nor confined to journeys in which the employer has some direct or notional interest”. (emphasis added)
Kirby J went on to note at [85]:
“From the first provision of this benefit in the 1926 Act, the realities of interruptions of, and deviations from, direct journeys to and from work were accepted as inevitable and not necessarily disqualifying. The fact that s 10 of the Compensation Act contemplates such interruptions and deviations contradicts a narrow classification of a “journey” as one to a private, non-statutory, destination, simply because it involves a departure from the direct journey between a permitted work origin and the place of abode. So long as the journey in question can fairly be characterised as a “journey”, or part of a “journey”, within s 10, questions of interruption and deviation must be left to the judge to determine in accordance with s 10 (2). It is inconsistent with the terms of that sub-section for interruptions and deviations, as such, to deprive the travel involved of the character of a “journey” within the Compensation Act.”
In this case, the journey being undertaken by the worker conformed to a periodic pattern. It clearly began when the worker left his home. The route taken was consistent with the route Mr Mason took every Tuesday. The evidence clearly established that his ultimate destination was his place of work. Mr Glendenning ascertained from Mr Mason prior to the accident that it was his intention to join Mr Glendenning and others for coffee at the coffee shop where they regularly stopped at Beaumont Street, Hamilton. Mr Glendenning’s evidence, which I accept, was that it was Mr Mason’s invariable practice to proceed directly from the coffee shop to work.
In Vetter Gleeson CJ, Gummow and Callinan JJ held at [29]
“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 the 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”.
Consistent with these authorities I find that the worker was on a journey between his place of abode and place of employment within the meaning of section 10 of the 1987 Act at the time of his death. There is no compulsion for a worker to take the shortest and most direct route to work. There is no prohibition on a worker achieving an additional purpose, in this case, the training ride, in addition to his purpose of cycling to work.
There is no precise evidence of the additional length of the journey taken on the training ride, bearing in mind the route Mr Mason intended to take. I’ve inferred that it is in the order of 35 to 45 km bearing in mind the evidence that Mr Mason intended to travel directly to work after the coffee stop at Hamilton thus negating part of the usual 9.9km for the trip between his home and office. In my view, the fact that the worker included a training ride with his cycling club, which added approximately 35 to 45 km to the more direct route, and which in part took him on a path opposite to the direct route, being undertaken before normal office hours, did not deprive the journey of the character of a periodic journey within the meaning of section 10 (3).
Kirby J noted in Vetter at [86] that there will be cases where a greatly protracted journey, or a deviation which is very substantial, or for a wholly private or unknown purpose will either never have had or will during its course lose, that character of a “journey” for the purpose of the Compensation Act. I reject the Appellant’s submission that this is such a case. Mr Mason commenced his journey at his place of abode and his intended destination was his place of employment. It was periodic in nature as this was the journey he undertook every Tuesday. The fact that his journey also included a training ride with a cycling club did not detract from the essential nature and character of the journey as a periodic journey between Mr Mason’s home and his place of employment.
The Arbitrator’s finding that the worker was on a periodic journey within the meaning of section 10 of the 1987 Act, at the time of his accident was certainly open to him on the evidence and I agree with it. In those circumstances it is unnecessary to consider whether, at the relevant time, Mr Mason was on a deviation from his usual journey, whether any deviation was for a reason connected with his employment or whether any interruption or deviation materially increased the risk of injury. However if I am wrong in finding Mr Mason was on a periodic journey at the relevant time, then it is necessary to determine those issues.
Was any deviation in the periodic journey for a purpose connected with his employment?
Appellant’s Submissions
The Appellant submits that the employer’s support of cycling in general is not unusual for a modern day firm giving support to work/life balance and a healthy lifestyle, but this support does not make the training ride connected to the worker’s employment.
Before the Arbitrator, the Appellant submitted that even though it may have taken pride in its employees’ achievements in cycling and other sports, it did not follow that the employees’ training ride was connected their employment.
Respondent’s Submissions
The Respondent has not addressed this issue.
Discussion
In finding that the interruption or deviation in the worker’s journey was made for a reason connected to his employment, the Arbitrator was influenced by Mr Glendenning’s evidence concerning various means by which the Respondent promoted cycling by its partners and staff. He was also influenced by the fact that Mr Mason was wearing a “Harris Wheeler” shirt at the time of his death. Notwithstanding one of the partners was described in a Harris Wheeler newsletter as having a rusty unused bicycle, the majority of the newsletters have a strong focus on cycling and display an obvious enthusiasm for cycling by its employees.
In Napoli v Arthur H Stephens (NSW) Pty Ltd [1970] 1 NSWLR 125 (‘Napoli’) referring to the journey provisions of the Workers Compensation Act 1926, Sugarman JA said at [127]:
“The question postulated by s 7 (b) (i) whether or not the substantial interruption was made for a reason connected with the worker’s employment is a question of degree. It is not the same question as that posed by the words ‘arising out of or in the course of the employment’, but is a wider question.”
The facts in this case establish the employer’s enthusiasm and support of cycling generally, and particularly amongst its partners and staff. I consider the reference in the profile on Mr Ball (a partner of the Appellant), in the Harris Wheeler newsletter issue 2, Summer 2004 (at page 4) referring to his disinterest in cycling as nothing more than, as the Arbitrator described it, an amusing counterpoint to the Appellant’s involvement in cycling. The remaining newsletters made numerous references to the firm’s participation in various cycling activities.
The Appellant sponsored the Kooragang Cycling Club of which Mr Mason was a member. The Appellant expended considerable funds providing cycling facilities and gear, both through the club, and directly for the benefit of its partners and staff. It provided funding for members of the firm to enter various cycling events. Mr Mason was wearing a cycling jersey with his employer’s livery at the time of his accident (although it was issued to him as a member of the cycling club, not as an employee of the Appellant). Mr Glendenning, the partner to whom Mr Mason reported, was also participating in the training ride and from time to time, Mr Smith, another partner, also participated.
According to Mr Glendenning the firm considered its involvement in cycling to be an important business networking activity. Other riders participating in the training rides included local business and professional people.
For the foregoing reasons, I agree with the Arbitrator’s conclusion, that the interruption or deviation to the periodic journey on which the worker was engaged at the time of his accident was for a reason connected with his employment, namely, the promotion of Harris Wheeler through networking in the cycling club.
If I am wrong, and the interruption or deviation was made for a reason unconnected with the worker’s employment then it is necessary to consider whether the risk of injury was materially increased because of the interruption or deviation.
Was a risk of injury materially increased because of the interruption or deviation?
Appellant’s submissions:
In relation to deviation the Appellant submits that the Arbitrator erred in finding at [68] that:
“Accordingly I am not persuaded that if the training run was unconnected with the Deceased’s employment it was a deviation where the risk of injury was materially increased as a result of the deviation. I am not persuaded that the Deceased’s presence amongst a group of cyclists in a breakdown lane materially increased the risk of injury as opposed to the Deceased cycling alone in the breakdown lane”
Babcock Australia Ltd v Proudfoot (1993) 9 NSWCCR 525 (‘Babcock’) is authority for the proposition that once a deviation has been established the onus then rests on the worker to prove that the deviation has not materially increased the risk of injury. The Appellant submits that the Arbitrator reversed the onus of proof in this matter in indicating that he was not satisfied on the evidence that material increase in risk resulted from the deviation. He needed to be satisfied on the evidence, that a material increase in risk did not eventuate from the deviation, and a failure to provide sufficient evidence on this point was a failure to establish the onus that rested on the Respondent.
There is ample evidence, so it is argued, that the training ride materially increased the risk of injury including:
(1) the training ride increased the length of the journey by approximately 35-40 km and roughly an hour;
(2) the training ride took place with a large group of riders in a pack, such that any one rider was heavily reliant on the conduct and riding skills of the other riders of the group. The fact that the worker was riding in a large group necessarily restricted his ability to avoid obstacles and threats on the road, and placed him closer to the traffic than riding alone;
(3) the training ride took in parts of the Pacific Highway, which was a much busier road than any of the roads the worker would be required to ride on between his home and office on his usual route;
(4) the Pacific Highway is a main arterial road and therefore clearly subject to more traffic and a greater number of trucks than the worker’s usual journey between his home and office, and
(5) one of the main reasons why the pack chose to ride on the Pacific Highway was that it afforded them the ability to travel in a large group and at high speed, thus increasing the effectiveness of the ride for training purposes of the Kooragang Club. The fact that a pack of cyclists usually is able to travel faster than a single cyclist is further evidence of increased risk.
The Appellant submits that all of these factors, considered alone or in combination, were evidence indicating that the Respondent was unable to establish that participating in the training ride did not materially increase the risk of injury. If there was a failure to adduce enough evidence in respect of this issue then with the onus falling on the Respondent, the claim must fail.
Respondent’s submissions
The Respondent agrees that if the worker was on a periodic journey and if there is found to be a deviation from the periodic journey then there is an evidentiary onus on the worker to establish that there was no material increase in risk. The Respondent submits the Arbitrator did not reverse the onus. The Appellant’s real complaint is against the Arbitrator’s factual determination that the evidence adduced had not established a material increase in risk.
The difficulty of “proving a negative” is recognised both logically and legally as being accommodated by requiring a party bearing such an onus to adduce some evidence that the tribunal accepts as establishing a prima facie case for the issue for which it contends.
The only evidence adduced on the point went to the only factor that may have been materially different, namely the nature of the roadways on the route actually taken, as compared with the more direct route between Mr Mason’s home and work that the deceased worker took on days other than on Tuesdays and every second Thursday. The evidence bearing on this point was limited to that of Mr Glendenning and Mr Smith and its effect was that the physical circumstances in which the activity was being conducted, that is, the roadway in each case, did not materially differ. Each roadway was a busy arterial multi-lane road, and each had a breakdown lane. Consequently there was sufficient evidence to establish a prima facie level there was no material increase in the risk arising from the physical circumstances, and the Appellant elected to adduce no evidence in rebuttal.
The only other matter dealt with in the evidence that was focused upon by the Arbitrator, and was the subject of submissions by the Appellant, was the effect of the worker riding as one of a group or team of cyclists at the time of his death. The Appellant did not adduce any evidence about how that factor went to the risk of injury or about whether the risk of injury was materially increased.
The Respondent submits that the extension of the journey in time and distance is not a material consideration and is “necessarily put out of account” (Scobie v K D Welding Company Pty Ltd (1969) 103 CLR 314 (‘Scobie’) per Dixon CJ: applied by the Full Court in Tucker v W D & H O Wills (Australia) Ltd [1969] 43 WCR 11(‘Tucker’)(per Herron CJ) and by the Court of Appeal in Alcatel v Griffiths (1997) 15 NSWCCR 398 at 404-405 per Mason P).
The factual submissions made by the Appellant in [84](2)-(5) are not self-evident and were not the subject of evidence. The actual evidence before the Arbitrator, including the evidence adduced by the Respondent on the point, was sufficient to discharge the Respondent’s evidentiary burden. On that evidence, and in the absence of any contradictory or further evidence from the Appellant affirmatively pointing to a material increase in risk of injury the Arbitrator correctly determined that there was no material increase in risk.
Discussion
Once the employer has established that the worker was injured during an interruption or deviation to a journey, the worker bears the onus of negating a material increase in risk, (see Babcock).
The material consideration is not whether the increase in the risk of injury resulting from the interruption or deviation actually caused the injury, but whether in fact there has been a material increase in the risk of injury generally by reason of the interruption or deviation (see Scobie at page 322).
Whether the interruption or deviation has materially increased the risk of injury requires a comparison of the risk likely to arise had there been no interruption or deviation and the risk involved in or during the deviation or interruption.
Whether the risk is likely to have been increased is a question of fact and degree. In Babcock, a blood alcohol level of 0.08g was held to have increased the risk because it was four times more likely that the worker would be involved in a motor vehicle accident with that level of intoxication.
In Tucker, stopping at a hotel and consuming three schooners of beer was held not to have increased the risk of injury. Nor did the fact that the worker walked home in darkness as the route taken was well lit and although there may have been some slight increase in risk the court was not satisfied that it was a material increase in risk of injury. I refer to these cases only to illustrate the point that the assessment of whether an interruption or deviation from a periodic journey will materially increase the risk of injury is a question of fact and will vary from case to case.
Whilst the worker bears the onus of proving that there has been no material increase in risk, which the Respondent accepts, once the worker has led sufficient evidence, from which if accepted, the negative proposition may be inferred, the evidentiary onus shifts to the employer to adduce evidence that tends to show that the negative proposition is incorrect. In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39 (28 March 2008) (‘Rockcote’), Justice Campbell said at [78]:
“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 a 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. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]- [2], 371-2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64-65”.
Justice Campbell added that [84]:
“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 plaintiff might succeed in establishing that proposition”.
The factors the Appellant submits materially increased the risk of injury are identified in paragraph [84]. First, it is alleged that the training ride extended the journey by 20 km and roughly one hour in time. As has been discussed there is no obligation on the worker to take the shortest and most direct route from his home to his place of work (see Vetter).
As Windyer J said in Scobie, at 331[par10] the increased risk due to the additional time taken on the journey as a result of a deviation or interruption is not necessarily material. At page 322 Dixon CJ added:
“Of course the mere prolongation of the period of time during which the worker was occupied between the two termini of his journey must in a logical sense cause an increased risk of injury; for it lengthens the time during which the injury may occur. But that element is necessarily put out of account”
In Mechanical Advantage Group Pty Ltd v George [2003] NSWCA 121, at [24] (‘George’) the worker and his brother had been required by their employer to work at Young in New South Wales. When the job they had been working on was finished they set out to drive to their home in Brisbane. The worker and his brother drove along the Hume and Pacific highways. They deviated from their direct route to meet their sister at Coogee and stayed overnight with her in Kensington. The following day they left Sydney and drove north along the Pacific Highway and then 11 km off the Highway to Bellingen where they stayed overnight at a hotel. During the evening the worker fell off a balcony at the hotel and was seriously injured. A traffic engineer qualified by the employer gave evidence about the risks involved in driving on the M5 at Beverly Hills to Coogee and from Coogee to the Pacific Highway. Referring to Scobie, Handley JA said at [24]:
“the increased risk due to the additional time taken on the journey as a result of a deviation or interruption is not necessarily material. On the evidence of the traffic engineer the Judge was entitled to find as a fact that the increased risks associated with the additional time and road mileage were not material.”
Second, the Appellant submits that the training ride took place in a large group of riders in a pack, such that any one rider was heavily reliant on the conduct and riding skills of the other riders of the group. The fact that the worker was riding in a large group necessarily restricted his ability to avoid obstacles and threats on the road, and placed him closer to the traffic than riding alone. The Appellant adduced no evidence of these matters. Mr Smith’s evidence demonstrated that the route being taken by Mr Mason had been selected by the cycling club for “safety reasons”. The route consisted mainly of arterial roads which were multi-lane and which mostly had a breakdown lane. All of the riders, including Mr Mason, were riding wholly within the solid white line of the breakdown lane.
Whether riding in a group or riding alone is more dangerous is a matter of speculation. There was no evidence on that issue. There was no attempt made to cross-examine either Mr Glendenning or Mr Smith, both of whom had provided statements of evidence and both of whom were experienced cyclists. On the one hand it may be considered that riding in a large group enhances the safety of the riders in that the group is more visible. On the other hand, whilst it may provide an opportunity for a single rider to ride closer to the shoulder or curb, there is no evidence from which a conclusion may be drawn one way or the other.
Third, it is submitted that the training ride took the riding group onto parts of the Pacific Highway, a much busier road than any of the roads the worker would have been required to ride on between his home and office on the direct route. The only evidence on this point is from Mr Smith who provided detailed maps of both routes. Being familiar with both routes, he said that both of them involve major arterial roads with each providing a breakdown lane for significant portions of the routes. Whilst it was open to the Appellant to call evidence, for example from a traffic engineer (as occurred in George), the Appellant elected not to do so. On the available evidence I am not satisfied that the training route was any busier than the direct route or that it was more dangerous.
Fourth, the Pacific Highway is a main arterial road and therefore clearly subjected to more traffic and a greater number of trucks than the worker’s usual journey between his home and office. This submission is no different in substance to the previous submission. There was no evidence adduced to support it. This submission is inconsistent with the evidence of Mr Smith, and I reject it.
Fifth, it is submitted one of the main reasons why the pack chose to ride on the Pacific Highway was that it afforded them the ability to travel in a large group and at high speed, thus increasing the effectiveness of the ride for training purposes at the Kooragang Club and the fact that a pack of cyclists is usually able to travel faster than a single cyclist is further evidence of increased risk. Again there was no evidence adduced to support the submission. Mr Smith had cycled the route on many occasions, he made no mention in his statement of any particular risk associated with the speed at which the group travelled, neither did Mr Glendenning. There is no evidence that the route was chosen to increase the speed at which the group could travel or that the increase in speed, if it did occur, made the cycling any more hazardous.
For the reasons given I do not accept the submission that the additional length of the journey or the time taken on the journey materially increased the risk of injury. Through the evidence of Mr Glendenning and Mr Smith, the Respondent has adduced sufficient evidence, which I have accepted, for the Commission to infer that there was no material increase in the risk of injury by reason of any interruption or deviation. That being the case, the onus then shifts to the employer to adduce evidence to demonstrate that the negative proposition is incorrect (see Rockcote). That has not occurred. The Appellant called no evidence before the Arbitrator or on appeal in relation to the issue. In these circumstances I find that the risk of injury was not materially increased because of the interruption of, or deviation from, Mr Mason’s periodic journey.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded that at the time of his death Mr Mason was undertaking a periodic journey between his place of abode and place of employment. If however, Mr Mason was injured during an interruption or deviation from such journey, the interruption or deviation was for a reason connected with Mr Mason employment with the Appellant. Further, if contrary to my finding that the deviation was for a reason unconnected with Mr Mason’s employment, I have concluded the deviation did not materially increase the risk of injury to Mr Mason.
DECISION
The Arbitrator’s determination of 30 April 2009 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
His Hon. Judge Keating
President
26 August 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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