Nicolaides v Coles Supermarkets Australia Pty Ltd and Ors (Ruling)
[2013] VCC 1343
•8 October 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03729
| JACK NICOLAIDES | Plaintiff |
| v | |
| COLES SUPERMARKETS AUSTRALIA PTY LTD (ACN 004 189 708) | First Defendant |
| COLES GROUP LIMITED | Second Defendant |
| and | |
| WESFARMERS LIMITED | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2013 | |
DATE OF RULING: | 8 October 2013 (Revised) | |
CASE MAY BE CITED AS: | Nicolaides v Coles Supermarkets Australia Pty Ltd & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1343 | |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury arising out of or in the course of employment – plaintiff ceased work and suffered injury on the way to a car park where his car was parked.
Legislation Cited: Accident Compensation Compensation Act 1985 (Vic), s82(1); s134AB(1) and (2)
Cases Cited:Fitzgerald v W G Clarke & Son [1908] 2 KB 796; Victorian WorkCover Authority v Michaels (2009) 26 VR 88; Reid Stockfeeds Pty Ltd v Lindhe [2008] VSC 304; Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281; Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; Park v Peach [1967] VR 558; Hickox v Education Department [1974] VR 426; South Maitland Railways Pty Ltd v James (1943) 67 CLR 496; Zlateska v Consolidated Cleaning Services Pty Ltd & NRMA Workers Compensation (Vic) Ltd [2006] VSCA 141; Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22; Fitzgerald v Ainsby Rubber Co [1987] VR 437; Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412; Foster v Edwin Penfold & Co Ltd (1934) 27 BWCC 240
Ruling:The plaintiff suffered injury to the left wrist arising out of or in the course of his employment with the first defendant on or about 29 May, 2010.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Mr M Walsh | Barbante & Associates Pty |
| For the Defendants | Mr B McKenzie | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 2 August 2012 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendants, or one or other of them.
2 Mr V Morfuni, Senior Counsel, appeared with Mr M Walsh of Counsel for the plaintiff, and Mr B McKenzie of Counsel appeared for the defendants.
3 The plaintiff submits that he has suffered an injury to his left upper limb which arose out of or in the course of his employment with the defendants, or one or other of them, which is denied by the defendants.
4 Mr Morfuni submitted that I should determine the question whether the plaintiff’s injury arose out of or in the course of his employment as a preliminary question. It occurred to me that there was good sense in determining that question first.
5 The plaintiff has another Originating Motion on foot which is part heard before Judge Parrish. It is due to resume later this month before his Honour. In that proceeding, the plaintiff seeks the leave of his Honour to bring a proceeding relevant to an injury to his right upper limb with a different employer from the defendants in this proceeding.
The Premises
6 The plaintiff was born in July 1968. He is now forty-four years of age. He is married, but separated. He has a three-year-old child who lives with him.
7 The plaintiff was employed by one or other of the defendants (“Coles”) as a store assistant at its supermarket at The Pines Shopping Centre in Doncaster East.
8 On 29 May 2010, the plaintiff arrived at the shopping centre by car. He parked his car in a car parking area behind Coles. He entered Coles via a loading ramp which led to a corridor. The corridor opened out onto a public area through doors separating the corridor from the public area. Immediately after exiting the doors, the supermarket was on the plaintiff’s left-hand side.
9 The plaintiff described the general setup of the shopping centre by reference to a diagram and ten photographs. I will turn to the diagram first and what it illustrates. The diagram is an aerial view of Coles. In the centre of the diagram is the supermarket. To the right-hand side rear of the supermarket is a loading bay relevant to the supermarket operation of Coles. To the left side are the doors to the corridor. The corridor extends to a point where it turns at right angles into a loading bay and then onto the car park where the plaintiff parked his car.
10 Of the ten photographs, only some of them were relevant. Many were a repetition of other photographs. I will only refer to those which I consider to be relevant in showing the supermarket, the corridor and the loading bay:
· Photographs numbered 1, 3, 4 and 10 are photographs taken facing from a public area into the supermarket where a member of the public would enter/exit the supermarket.
· Photograph numbered 1 shows the doors. To the extreme left of the photograph are the doors to the corridor.
· Photographs 2, 5, 8 and 9 show a close-up view of the doors. There are two doors which open inwards. The direction in which they are open is shown in photograph numbered 9. There is signage on the doors which Mr Morfuni and Mr McKenzie informed me was not present on the doors on 29 May 2010.
· Photographs 7 and 9 show the corridor through the open doors. They are taken out of sequence. The proper sequence is to look at photograph numbered 9 first. It shows the doors opened inwards from the public area. It shows a carpeted corridor leading to a further two doors which appear to me to be very much the same size as the other two doors.
· Photograph 6 shows the loading bay which is accessed through the second set of doors. It would appear that after opening the second set of doors the plaintiff then turned to his right. At that point he would be standing in the position of the photographer who took photograph numbered 6. The photograph shows the floor of the loading bay. At the edge of the loading bay, and to its left is a ramp leading from the loading bay to a concreted driveway. In the background there is a car park.
The Incident
11 The plaintiff’s shift was due to finish at 2.00pm. He was asked to stay on. He eventually ceased work at about 4.00pm. He left the supermarket and opened the first set of doors leading to the corridor. He walked down the corridor. He opened the second set of doors, and turned right on the loading bay. He then attempted to leave the loading bay and enter onto the concreted driveway when he tripped and fell on the lip of the ramp where it is set onto the loading bay shown in photograph numbered 6.
12 At the time when the plaintiff commenced his employment with the defendants, his manager was a man named Steve. He was unable to recall Steve's surname. At first the plaintiff said that he was directed by Steve to use the corridor to enter/exit the shopping centre via the public area, but under cross-examination, he said that he was told that he could use the corridor. I do not think much turns on whether he was given such a direction or was merely given permission to enter/exit the shopping centre that way.
13 Under cross-examination, the plaintiff was referred to a report of Dr Cubitt, consulting engineer, dated 29 July 2010. In particular, he was referred to an aerial diagram of the whole shopping centre complex. He identified the diagrams. He said that there were a number of points of entry/exit which could be used to enter/exit the shopping centre. He said that he was entitled to use any one of those entry/exit points in entering and exiting the shopping centre.[1] Also under cross-examination the plaintiff said that he was told to use the car park at the rear of the shopping centre.
[1]Defendants’ Court Book (“DCB”) 58
14 Mr McKenzie referred to the plaintiff to some of the contents of the affidavits of Ms M Masala, who was the officer in charge of Coles at the shopping centre, sworn 25 July 2012,[2] and the affidavit of Mr D Darcy sworn 1 October 2013,[3] who was the store manager of Coles at the shopping centre in May 2010. In particular, Mr McKenzie asked the plaintiff whether he was aware that the corridor and the loading bay shown in the photographs were part of the premises of Coles. The plaintiff said that he simply did not know whether that was the case or not.
[2]DCB 17-19
[3]DCB 30-32
15 In re-examination, the plaintiff said that it was his habit to park his car in the car park behind the shopping centre and to enter/exit the shopping centre in the same manner that he did on 29 May 2010. He said that he was aware that other employees of Coles entered/exited the shopping centre in the same way that he did.
16 Mr Darcy said that he was the manager of the supermarket in May 2010. He said that there was a parking area which was designated for the use of employees of the shopping centre. He believed that the operator of the shopping centre required employees of businesses operated in the shopping centre to park their cars in that designated area. He said that the corridor was used by employees if they were late, and I took that to mean that employees also used other entries/exits when entering and exiting the shopping centre.
17 Mr Darcy produced his own hand-drawn diagram which did not differ markedly from the diagram prepared by the plaintiff. He was shown photograph numbered 6. He agreed that it showed the designated car parking area for employees of businesses of the shopping centre. He said that the fencing shown on the left-hand side is different in construction and is longer than it was when he worked for Coles, but otherwise he agreed that the photograph showed the loading bay and parking bays in the distance.
Findings
18 The following matters are not controversial:
· The plaintiff was employed by Coles on 29 May 2010 at its supermarket at the shopping centre.
· The plaintiff parked his car in a car parking area at the rear of Coles.
· At about 4.oo pm, he ceased work.
· The plaintiff opened the first set of doors, walked down the corridor, opened the second set of doors, turned right and entered onto the loading bay.
· As he attempted to leave the loading bay, he tripped and fell, suffering injury to his left wrist.
· The plaintiff, and other employees of Coles, entered/exited the shopping centre in the same way as the plaintiff did on 29 May 2010.
· The operator of the shopping centre required employees of businesses operating within the shopping centre to park their cars where the plaintiff parked his car.
19 Although the following are perhaps controversial, I make the following findings on the evidence:
· The plaintiff was not directed to use the corridor and the loading bay to enter/exit the public area and Coles; however, he and other employees of Coles were in the habit of using the corridor and the loading bay for that purpose.
· The corridor and the loading bay were not part of Coles’ premises and not under its control.
The Issue
20 The single issue which falls for my determination is whether the incident arose out of or in the course of the plaintiff’s employment with Coles.
The Legal Principles
21 It is trite language, in the context of serious injury applications brought pursuant to s134AB of the Act, that the foundation for such an application is that the plaintiff has suffered a “compensable injury”.
22 A determination whether the plaintiff has suffered a compensable injury must be undertaken by reference to the test of compensability referred to in the Act. Compensation is not payable unless s82(1) is satisfied. It is in the following terms:
“ If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”[4]
[4]The same language is used in s134AB(1) and (2) of the Act
23 Mr Morfuni submitted that the incident arose both out of and in the course of the employment of the plaintiff with Coles. In that connection, it is important to keep in mind the distinction between “arising out of” and “in the course of”. That was made clear in Fitzgerald v W G Clarke & Son[5] in which Buckley LJ said:
“The words ‘out of’ point, I think, to the origin or cause of the accident; the words ‘in the course of’ to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place.”[6]
[5][1908] 2 KB 796
[6]at 799
24 Mr Morfuni and Mr McKenzie very helpfully provided me with folders of authorities which each of them submitted were relevant to my consideration of whether the injury suffered by the plaintiff arose out of or in the course of his employment with Coles.
25 I do not propose to review all of the authorities I was taken to, because essentially they refer to the same learning on the interpretation of “arising out of or in the course of”. Interestingly, the point was made starkly in the Victorian WorkCover Authority v Michaels[7] in which the Court of Appeal described the words of the statute as “very much encrusted with decades of judicial exposition”.[8] A similar observation was made in Reid Stockfeeds Pty Ltd v Lindhe[9] by Kyrou J. His Honour referred to the fact that not all the authorities use the same language, but all referred to the same test of causation.[10]
[7](2009) 26 VR 88
[8]at 94
[9][2008] VSC 304
[10]at paragraph 17
26 I propose to refer only to those decisions which appear to me to be at the foundation of the interpretation of the meaning of the words of the statute, and mainly to Australian authorities.
27 The quality of what is required to establish that the incident arose out of or in the course of employment was dealt with in Henderson v Commissioner of Railways (WA)[11] and in Humphrey Earl Ltd v Speechley[12] in which Dixon J observed that the test includes doing acts which are merely incidental to the performance of work upon which a worker is engaged by the employer to perform. In Henderson, he said:
“… 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. ... 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. … .”[13]
[11](1937) 58 CLR 281
[12](1951) 84 CLR 126
[13]at 294
28 And later, in Humphrey, he said:
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment.The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties.”[14]
[14]at 133
29 In a number of authorities which followed Henderson and Humphrey it has been noted that in Henderson, Dixon J referred to “actual duties” in the context of causation, whereas in Humphrey, he did not qualify his reference to “duties” by limiting it to “actual” duties. It has been the subject of commentary, but it would appear that it is of no great moment.
30 In Reid Stockfeeds, Kyrou J said:
“Many cases have applied the Henderson principle, with some retaining the word ‘actual’, and others omitting it. Although not all of the cases have used the same language as Dixon J in Henderson and Speechley, they have all required that there be a nexus (which has sometimes been very slight indeed) between the relevant activity and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service. The outcomes of the cases have varied and have largely turned on their facts. A trend, however, can be discerned towards the adoption of a more liberal approach to whether something is ‘in the course of” employment. It is only possible to reconcile the application of the Henderson principle with decisions in many modern cases by a strained interpretation of the words ‘in order to carry out his actual duties’.” - 15#15[15]
[15]at paragraph 17
31 The reference to the nexus sometimes being very slight resonates in a number of authorities, and in particular, Park v Peach[16] in which Adam J referred to the necessity for a sufficient connection with employment, and its remoteness or otherwise of the activity from the worker’s employment becomes a matter of degree.[17]
[16][1967] VR 558
[17]at 565
32 In Hickox v Education Department,[18] the Full Court applied the language used by Dixon J when it said:
“Where a worker, whilst not performing the actual duties of his employment, was caused injury at a time and place doing something which might be regarded as reasonably incidental to, consequential upon or ancillary to, his employment-- not necessarily being required to be done as part of his obligations as an employee, but rather as something that would be reasonably required, authorized or expected of the worker by his employer, as inferred from the facts and circumstances of the existing relations between the worker and the employer -- then the worker is entitled to compensation as having suffered injury in the course of his employment.”[19]
[18][1974] VR 426
[19]at 430
33 In South Maitland Railways Pty Ltd v James,[20] Starke J postulated the test somewhat differently by observing the circumstances which would militate against a finding that an injury arose out of or in the course of employment. He said that the worker would fail if the activity in question is so far removed from the employment contemplated by the employer and the worker as to exclude it from the course of the worker’s employment. He added that it is material in considering whether the activity arises out of the employment was a natural thing that any worker would do and not altogether foreign to the employer’s interests.[21]
[20](1943) 67 CLR 496
[21]at 504
34 A later enunciation of the question of causation was dealt with in Zlateska v Consolidated Cleaning Services Pty Ltd & NRMA Workers Compensation (Vic) Ltd.[22] The Court of Appeal said:
“There is a single test to be applied under s 82(1) — the ‘arising out of” test. The test raises a question of causation. In a case such as the present, the test is satisfied if it can be shown, on the balance of probabilities, that an injury to the worker was caused by an act or omission of the employer (including any servant or agent of the employer). This causation question is to be approached, like any other causation question, as a matter of common sense.”[23]
[22][2006] VSCA 141
[23]at paragraph 82
35 It is relevant in determining whether the injury arose out of or in the course of the plaintiff’s employment to have regard to the time, place and circumstances which prevailed at the time when the injury occurred.
36 In Whittingham v Commissioner of Railways (WA),[24] Dixon J said:
“… the sufficiency of the connection between his employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstances, as well is practice must be considered together with the conditions of the employment.”
[24](1931) 46 CLR 22
37 In Fitzgerald v Ainsby Rubber Co,[25] O’Bryan J cited Whittingham with approval in the course of reviewing a number of authorities. He added that the remoteness or otherwise of the activity, on which the worker is engaged at the time of injury, from his employment becomes a matter of degree.[26] So it must be that the nexus of the occurrence of injury with the worker’s employment must include consideration of a number of factors, but those factors and their importance become a matter of degree to be determined on the particular facts falling for the consideration by the Court.
[25][1987] VR 437
[26]at 441
Disposition
38 There is little, if any, real dispute on the facts. What is abundantly clear is the following:
· The plaintiff was instructed to park his car at the rear of shopping centre.
· The operator of the shopping centre instructed the operators of businesses at the shopping centre to have their employees park at the rear of the shopping centre.
· There was an area at the rear of the shopping centre which was designated as an employee parking area.
· Coles’ employees, including the plaintiff, were instructed to park in the designated parking area.
· The photographs demonstrate, and in particular photograph numbered 6, that it is probable the nearest entry/exit into and out of the shopping centre was the corridor used by the plaintiff.
· Mr Darcy, in his role as manager of the supermarket, was aware of the instruction given by the operator of the shopping centre, and was aware that employees of Coles used the corridor to enter/exit the shopping centre.
· Mr Darcy knew that the purpose of the designated parking area was to avoid employees of the shopping centre taking up parking spaces available for patrons of the shopping centre.
· The plaintiff went off duty at 4.00pm. He immediately went through the first set of doors, down the corridor and through the second set of doors out onto the loading bay where the incident occurred. There was no break in that journey which could be considered to be a break in the causal connection between the time of the cessation of his employment that day and the occurrence of the incident.
· There is no doubt that the incident occurred very shortly after the plaintiff left the supermarket.
39 As is apparent from all of the authorities which I have read, the difficulty is ultimately applying the principles of law to the particular facts. I engaged in much debate with Mr Morfuni and Mr McKenzie about the utility of relying on analogies when it was more relevant and pertinent to concentrate on the particular facts as they unfolded immediately prior to the occurrence of the incident which befell the plaintiff.
40 However, having had that debate with Mr Morfuni and Mr McKenzie, I was taken to an authority by Mr Morfuni which is as close to an analogy as is to be found in the authorities. In Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd,[27] Beach J dealt with a factual situation, and referred to an authority, which are of considerable assistance to me in determining what conclusion I should reach on the question whether the plaintiff’s injury arose out of or in the course of his employment with Coles.
[27][2012] VSC 412
41 The injured worker walked into the ground floor foyer of a city building. She stepped onto water on the floor of the foyer. As a result, she slipped and fell. The worker intended to go from the foyer to the third floor of the building where she intended to immediately commence her day’s work. It was contended that the worker’s injuries did not arise out of or in the course of employment within the meaning of s82 of the Act. His Honour reviewed a number of authorities, one of which was Foster v Edwin Penfold & Co Ltd.[28] His Honour relevantly summarised the facts of Foster and his conclusions as follows:
“There is a paucity of material in relation to the nature and terms of Ms Williams’ employment. However, I have concluded that her injuries satisfy the statutory formula in s 82 of the Act. Remembering that the question is essentially a factual one, in my view, this case falls to be decided by the application of reasoning similar to that applied by the Court of Appeal in Foster v Edwin Penfold & Co Limited. The facts of that case may be briefly stated as follows. The employers’ premises stood between a public highway and a wharf which was not their property. On the wharf stood a garage which was leased by them. Employees were allowed to park their cars on the private wharf. There was a private passage at the back of the employers’ premises by which access could be obtained to the wharf. On the night in question, the deceased worker ran his car against a bollard on the wharf, and the deceased fell into the river.
Slesser and Romer LJJ held that the accident arose in the course of employment. They so held, because the accident occurred while the deceased was using a permitted means of egress from his work and on a spot where he happened to be not as a member of the public, but only by virtue of his employment. The ownership or control of the spot where the accident occurred was held to be immaterial.
While in the present case there are arguments both ways, I accept that Ms Williams’ injuries occurred while she was using a permitted (if not expected) means of gaining access to her work area. Further, Ms Williams was in the foyer of the building, not as a member of the public, but only by virtue of her employment. Additionally, she was proceeding in the building directly to her work area. Accordingly, I am satisfied that Ms Williams’ injuries arose out of or in the course of her employment within the meaning of s 82 of the Act.”[29]
[28](1934) 27 BWCC 240
[29]paragraphs 73-75
42 The issue which I must decide also falls to be determined by the application of reasoning similar to that applied by the Court of Appeal in Foster, and by Beach J in Jones Lang Lasalle. In summary, my reasoning is as follows:
· The plaintiff was required to park his car at the rear of the shopping centre which was a designated parking area for employees of the operators of businesses at the shopping centre.
· The use of the loading bay and corridor to enter/exit was certainly permitted, according to Mr Darcy, and according to the plaintiff, it was an expected means of entry/exit.
· The plaintiff was not using the loading bay and corridor as a member of the public or on some frolic of his own, but was using it only by virtue of his employment by Coles, and to state the obvious, to exit the premises so that he could enter the designated employee car park to access his car.
43 Mr McKenzie, in a well constructed submission based upon relevant authorities, said that once the plaintiff left the supermarket he was “his own man”, meaning that any incident which befell him could not be sheeted home to Coles as its responsibility. For reasons which are obvious, I reject that submission, because it fails to recognise what resonates so loudly in the authorities; that an injury to arise out of or in the course of employment does not have to be connected to the discharge of actual duties of the employee in the employee’s service with the employer. I think that is plain enough from the authorities.
44 I am also influenced in reaching the conclusion that I have by what was said in Reid Stockfeeds, Park and Hickox that I should adopt a liberal approach in determining whether the particular facts contended for by the plaintiff satisfy the statutory test.
Conclusion
45 Therefore, I rule that the injury suffered by the plaintiff on 29 May 2010 arose out of or in the course of his employment with Coles.
Orders
(1) The plaintiff suffered injury to the left wrist arising out of or in the course of his employment with the first defendant on or about 29 May, 2010.
Orders by Consent
(2) The third defendant to pay the plaintiff's costs pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2010.
(3) Certificate for two Counsel:
(a) Senior Counsel’s fees on brief at $5,500 with three days and two hours of conference at $550.00 per hour; and
(b) Junior Counsel’s fees on brief at $2,750 for three days and two hours of conference at $275.00 per hour.
(4) The proceeding is otherwise dismissed.
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