Pilkington and Comcare - [2000] AATA 856

DECISION AND REASONS FOR DECISION [2000] AATA 856

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/67

GENERAL ADMINISTRATIVE DIVISION          )
           Re      BERNARD JOHN PILKINGTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Associate Professor SD Hotop, Deputy President Brigadier RDF Lloyd, Member Dr D Weerasooriya, Member

Date26 September 2000
PlacePerth

Decision The Tribunal affirms the decision under review.

...........(sgd S D Hotop)...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by Australian Bureau of Statistics as Census Field Officer for East Kimberley region – applicant injured in motor vehicle accident outside East Kimberley region en route to Derby – whether respondent liable to pay compensation to applicant in respect of incapacity for work or impairment suffered by him as a result of motor vehicle accident – whether injury sustained by applicant in motor vehicle accident arose out of or in course of employment.
Safety, Rehabilitation and Compensation Act 1988 ss4(1), 6(1), 14(1)
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Humphrey Earl Ltd v Speechley (1951) 84 CLR 126

REASONS FOR DECISION

26 September 2000 Associate Professor SD Hotop, Deputy President Brigadier RDF Lloyd, Member Dr D Weerasooriya, Member

This is an application by Bernard John Pilkington ("the applicant") for review of a reviewable decision made on behalf of Comcare ("the respondent") on 23 September 1997 to the effect that compensation is not payable by the respondent to the applicant pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of an injury sustained by the applicant in a motor vehicle accident on 16 August 1996. That reviewable decision revoked an earlier determination made on behalf of the respondent on 15 November 1996 accepting liability to pay compensation to the applicant pursuant to s14 of the Act in respect of the abovementioned injury.
At the hearing the applicant appeared in person without representation and the respondent was represented by Mr S Pilkinton of counsel. The Tribunal had before it the documents ("T documents" numbered T1 – T116) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered by the applicant (numbered A1 and A2) and by the respondent (numbered R1 – R8). Oral evidence was given by the applicant, by Mr L Spratt (who was called as a witness by the applicant), and by Mr A Jones (who was called as a witness by the respondent).
The factual background
The relevant background facts, as found by the Tribunal on the basis of the T documents and Exhibits and about which there is no dispute between the parties, are as follows.
The applicant, who was born on 15 March 1956, was at all material times employed by the Australian Bureau of Statistics ("ABS") as a Census Field Officer for the purposes of conducting the 1996 Census. The agreed term of his employment with the ABS was from 15 April 1996 to 30 September 1996 and approval was given by the Department of Social Security (where the applicant was then employed) for a temporary transfer of the applicant to the ABS for that period. (Exhibit R8)
An "Incident Report", dated 17 August 1996, signed by the applicant and witnessed, stated that at 11.50pm on Friday 16 August 1996 a motor vehicle being driven by the applicant, who was accompanied by another person, collided with 4 cattle on the Great Northern Highway approximately 135 kilometres from Derby while the vehicle was travelling in a westerly direction at a speed of approximately 100 kilometres per hour resulting in the applicant and his passenger sustaining injuries described as "neck injuries, possible whiplash" and the vehicle being extensively damaged. The Report went on to state that at 11.20am on 17 August 1996 the applicant was examined by a registered nurse at Derby Regional Hospital who provided him with a neck brace and pain killers and made an appointment for him to see a doctor at the hospital on Monday 19 August 1996. (T3)
A "First Medical Certificate" completed by a medical practitioner at Derby Regional Hospital, dated 19 August 1996, referred to a provisional diagnosis of "whiplash injury" sustained by the applicant and certified that the applicant would be unfit for a period of one week. (T4) Progress medical certificates have been issued subsequently in relation to the applicant's ongoing neck and back pain.
A "Claim for Rehabilitation and Compensation" form, dated 16 September 1996, in respect of "whiplash injury" sustained by the applicant in the abovementioned motor vehicle accident, was completed by the applicant and subsequently lodged with the respondent. In that form it was indicated by the applicant that the accident was a "transport accident while working" and had occurred while he was travelling from one workplace to another workplace by a direct route during work hours. (T8)
By letter dated 15 November 1996 an officer of the respondent accepted liability to pay compensation to the applicant pursuant to s14 of the Act in respect of the injury sustained by the applicant in the abovementioned motor vehicle accident. (T21)
By letter dated 26 May 1997 an officer of the ABS requested a reconsideration by the respondent of its abovementioned determination of 15 November 1996. (T64)
By letter dated 23 September 1997 an officer of the respondent notified the applicant that, following a reconsideration of the determination of 15 November 1996 at the request of the ABS, he had decided that compensation was not payable to the applicant under the Act in respect of the injury sustained by him in the relevant motor vehicle accident, and that the effect of this decision was to revoke the determination of 15 November 1996. (T104)
On 13 February 1998 the applicant lodged with the Tribunal an application for review of the decision of 23 September 1997, together with an application for an extension of time for lodging the application for review. (T1) On 9 March 1998 the Tribunal directed that the time for lodging that application for review be extended until 13 February 1998.
The applicant's evidence
The applicant told the Tribunal that, when he took up his appointment as a Census Field Officer with the ABS in April 1996, his designated work area was the South-West region of Western Australia but, following the death of the Census Field Officer responsible for the East Kimberley area of Western Australia, he volunteered to carry out his duties as a Census Field Officer in that area because he was familiar with it, having previously worked there for 4-5 years as an Aboriginal Liaison Officer with the Department of Social Security.
The applicant told the Tribunal that, following the death of the abovementioned officer, aboriginal law and custom dictated that no census duties be conducted in the area concerned until "unfinished business", including the officer's funeral ceremony, had been completed. He said that he stayed with his sister in Derby until the funeral ceremony in early June 1996 which he, and the ABS State Indigenous Manager, Mr A Jones, attended. He said that he then attended a training session in Perth, conducted by Mr Jones, in the period 17-21 June 1996 before commencing his duties in the East Kimberley area. He added that, because of the delay resulting from the death of the previous officer, he commenced his duties in the East Kimberley area about 6 weeks behind schedule.
The applicant acknowledged that, during his training session with Mr Jones, he was advised that travel in the course of his employment had to be within his designated area, unless he had been given permission to travel outside that area. He said that the main towns in his designated area of East Kimberley were Halls Creek, Kununurra and Wyndham and that, during his training session in Perth, Mr Jones had suggested that he use one of those towns as his home base. The applicant also acknowledged that the towns of Derby and Broome were outside his designated area and that he was authorized to travel to those towns for the purposes of his employment only if he had been given permission to do so.
The applicant also told the Tribunal that, during his training session in Perth, Mr Jones requested him to report back to him on his whereabouts and work progress whenever he was able to do so and to keep a diary of his work activities. A copy of the applicant's diary entries covering the period from 24 June 1996 to 15 August 1996 was included in the T documents (T88, pp 157-172). The applicant acknowledged that those diary entries were not always made on the relevant days but that he made them whenever he got the chance and each entry was made within a week of the relevant day. The applicant was questioned in detail by Mr Pilkinton (for the respondent) about those diary entries and his evidence (which it is not necessary to record here) confirmed that there were numerous inaccuracies in those diary entries. The applicant acknowledged that his diary was not accurate but added that, because of the pressure he was under to complete his census duties in time, especially given his late start, his first concern was to get the job done whereas making diary entries was the last thing on his mind.
The applicant told the Tribunal that, although the census date was 6 August 1996, it was not expected by his supervisor, Mr Jones, that he would be able to complete his census duties until some weeks after that date, given the large number of aboriginal communities he was required to visit in the East Kimberley area.
The applicant told the Tribunal about his motor vehicle accident, which occurred during the night of 16 August 1996, and the events immediately preceding that accident. He said that on the morning of 16 August 1996 he and his assistant, Mr L Spratt, had collected census forms from various communities and then arrived in Halls Creek. He said that at about 2.00pm he telephoned his supervisor, Mr Jones, from Halls Creek and told him that he wanted to take the census forms he had already collected to Derby, together with other forms he would be collecting en route, collate and box the forms at his sister's house in Derby and arrange for them to be collected from his sister's house and delivered to Perth, and then travel back to Kununurra, via the Gibb River Road, collecting further census forms en route from remote communities in his designated area. He said that Mr Jones "saw the sense" in that proposal, agreed with it, and gave him permission to travel the abovementioned route. He added that if Mr Jones had refused him permission to travel that route, he would not have done so.
The applicant said that, after leaving Halls Creek on the way to Derby, he stopped at the Yiyili community, which was within his designated area, between 8.30pm and 9.00pm on 16 August 1996 to collect census forms. That was the last community he visited in his designated area while en route to Derby and thereafter his journey to Derby was outside his designated area, although he maintained that he had Mr Jones' permission to travel outside his designated area to Derby.
The applicant told the Tribunal that the relevant motor vehicle accident occurred shortly before midnight on 16 August 1996 while he was travelling to Derby on the abovementioned journey which he said had been authorized by Mr Jones. He agreed that that accident occurred at a place some 300 kilometres outside his designated area.
The applicant acknowledged that the town of Wyndham (which was within his designated area) was much closer to the communities along the Gibb River Road that he was required to visit than was the town of Derby, and that he could have collated the census forms at Wyndham or Kununurra rather than at Derby. He maintained, however, that he regarded his proposed route via Derby as the easiest and most convenient way of carrying out his census duties.
In response to questions from the Tribunal the applicant explained his understanding of the terms of his employment contract with the ABS as regards his designated area and areas where he was authorized, and not authorized, to travel for the purpose of performing his census duties. He said that he understood that he had to work within his designated area of East Kimberley, unless he had permission to be outside that area. Asked how strict that arrangement was, the applicant said that it was "pretty strict". He added:
" I knew where my area was and I – that is why I basically stayed in it." (Transcript, p 142)

As regards his working hours, he said that it was not his understanding that officially he was confined to travelling in daylight hours and he added that so to confine his travelling would have been "impossible", given the work he was doing. Finally, the applicant agreed with the suggestion that he understood he had a "roving commission" to carry out his duties in his designated area in the manner he saw fit.
The evidence of mr l spratt

Mr L Spratt was employed at the relevant time by the ABS as an Assistant Census Field Officer, assisting the applicant in the carrying out of census duties in the designated East Kimberley area. He told the Tribunal that the applicant had signed him up as his assistant on 24 June 1996 and that thereafter he worked with the applicant on a daily basis. Mr Spratt was a passenger in the motor vehicle being driven by the applicant when the relevant motor vehicle accident occurred late at night on 16 August 1996.
Mr Spratt told the Tribunal that early on the morning of 16 August 1996 he telephoned Andrew Jones from Halls Creek querying why his fortnightly pay had not been credited to his bank account. He said that Mr Jones told him that the matter was being attended to and then transferred his call to Ms J Gelmi who told him that his pay would be in his account that afternoon. Mr Spratt was referred by Mr Pilkinton (for the respondent) to a copy of a pay invoice slip in Mr Spratt's name, dated 14 August 1996 (Exhibit R3). Mr Spratt maintained that when he checked his account at Halls Creek Post Office, the money was not in the account – hence his telephone call to Mr Jones.
Mr Spratt later explained that it was the applicant who first spoke with Mr Jones in the abovementioned telephone call in the morning of 16 August 1996. He said that while the applicant was speaking with Mr Jones, he was probably standing outside the telephone booth or was in the Post Office checking his account balance, and that when he came out of the Post Office the applicant was still on the telephone and he spoke with Mr Jones after the applicant had finished.
A statutory declaration by Mr Spratt, dated 9 November 1999, was tendered in evidence by the applicant (Exhibit A1). In his oral evidence Mr Spratt confirmed that the contents of that statutory declaration were true and correct. In that statutory declaration Mr Spratt relevantly stated that, in the morning of the day of the motor vehicle accident, he and the applicant had collected census forms from the Billiluna and Mulan aboriginal communities and were awaiting forms from Ringer's Soak and Chinaman's Garden which were to be flown in by the mail plane that afternoon. Mr Spratt's statutory declaration continued:
"Whilst awaiting the arrival of these forms I rang Andrew Jones regarding my pay. He informed me a Mrs Judy Gelmi was attending to it and it would be in later that afternoon when we arrived in Derby, our base.
I then informed Andrew Jones that forms had arrived and had been collected and he then informed me he'd contact us on our arrival in Derby at Carol Martin's. That is when we left Halls Creek and headed towards Derby with pickups along the way at Koongie Park and Yilli Yilli (sic) aboriginal community".

The statutory declaration stated in conclusion that, after they had picked up forms from the last community, Yilli Yilli (sic), they had the relevant motor vehicle accident at approximately 11.30pm-12.00pm that night.

Mr Spratt was referred by the Tribunal to a marginal note – "Approx 2pm" – which appeared at the commencement of page 2 of his statutory declaration. He told the Tribunal that that note referred to the expected time of arrival of the mail plane from Ringer's Soak, referred to at the foot of page 1 of his statutory declaration.
In response to further questioning by the Tribunal Mr Spratt confirmed that in the morning on 16 August 1996 both the applicant and he spoke with Mr Jones by telephone – first the applicant spoke with Mr Jones about the work they had completed, and he then spoke with Mr Jones about his pay. He said he was not aware at that time that they would be travelling to Derby, and that he first became aware of that in the late afternoon on 16 August 1996 when the applicant said to him that they had now collected most of the material in the Halls Creek area and they would be travelling to Derby collecting forms from other communities along the way. He said that he assumed that the applicant had spoken with Mr Jones, in the telephone conversation that morning, about going to Derby but that the applicant did not mention to him that they would be going to Derby until late that afternoon.
The statement of ms c martin
The applicant also tendered in evidence a statement by Carol Anne Martin, dated 18 March 1999, signed by Ms Martin and witnessed by a Justice of the Peace (Exhibit A2). In that statement Ms Martin gave her occupation as social worker, mentioned that the applicant is her brother, and outlined her involvement in the ceremonial arrangements following the death of the Census Field Officer whose duties the applicant subsequently agreed to carry out in the designated area of East Kimberley. Ms Martin's statement then referred to a conversation she had with Andrew Jones regarding that matter and continued:
"During our conversation, I suggested that Bernie should use Derby as his base, as I have access to phone, fax, computers and an office which Bernie is welcome to use. I explained it is hard catching up on your paper work from a Motel room. Andrew said that should not be a problem, and thanked me for the offer on Bernie's behalf. So it was my understanding that Bernie could come to Derby to complete his paperwork, and to use this as a base, when he needed to spend a few days to complete his administrative duties, I did talk to Bernie about this, but I did not suggest that Andrew talk to Bernie. I am not aware whether Andrew talked to Bernie or not about this matter, it would seem logical that Andrew would talk to Bernie, but I never saw anything in writing.
In August, 1996, my brother Bernie, called me to say he was on his way to Derby and should be their (sic) either that night or early the next morning. That was the 16th of August, on the morning of the 17th, he arrived, but he was in pain, he had arrived earlier in the morning, about 0630hrs. I was still in bed, my husband did not wake me, as I had had a restless night the night before. Bernie told me he had hit some cattle on his way to Derby."

The statement went on to refer to subsequent events which it is not necessary to record in these reasons.

The evidence of mr a jones

Mr A Jones was called as a witness by the respondent. An outline of Mr Jones' evidence was tendered (Exhibit R4) and he confirmed that its contents are true and correct. Mr Jones' outline of evidence states as follows:
"1. I have worked for the Australian Bureau of Statistics from February 1996 until the present. I am presently an Australian Public Service Administrative Officer Class 5. At the time of the motor vehicle incident in August 1996 in which Mr Pilkington was injured, I was the State Indigenous Manger for the WA office of the Australian Bureau of Statistics.
2. Before working at the Australian Bureau of Statistics I worked at the Aboriginal & Torres Strait Islander Commission based in Canberra as a Community Development Section Officer for two and a half years. Initially my area of responsibility involved health infrastructure projects and assisting in drafting proposals for cabinet policy decisions in the area of housing projects and infrastructure for indigenous communities. I was also involved in the monitoring of funding for health infrastructure and housing projects.
3. As State Indigenous Manager I was responsible for ensuring adequate enumeration for indigenous people in Western Australia, including recruiting and training census field officers for remote area work. I was also responsible for the management of census field officers in WA and ensuring that all field activities were conducted in an efficient and timely manner.
4. The Applicant was recommended to the Australian Bureau of Statistics by a person from ATSIC in early March 1996 for the position of a census field officer.
5. The Applicant was already a permanent public service officer with DSS at this time.
6. He was initially recruited to work in the South West region but after the death of Mr Leighton Leitch on 10 May 1996 was transferred to work in the region previously worked by Mr Leitch, being the East Kimberley region.
7. Prior to the transfer the Applicant assured me that he had spent several years working in the Kimberley region, and was familiar with the safety issues of working in remote areas.
8. The duration of the Applicant's contract with the Australian Bureau of Statistics as a census field officer was from 15 April 1996 to 30 September 1996.
9. Mr Spratt was chosen by the Applicant to be his assistant census field officer upon his arrival in the Kimberley region.
10. The Applicant and Mr Lionel Spratt were employed as census field officer and assistant census field officer respectively for the purpose of organising the enumeration of the discreet (sic) Aboriginal communities within the East Kimberley region for the 1996 census.
11. Their primary responsibility was the delivery and collection of census forms to and from nominated discreet (sic) communities within the East Kimberley region. They were also required to liase with mainstream field managers, group leaders and collectors to ensure a complete and comprehensive coverage of the indigenous population during the census.
12. The full range of the census field officers duties were discussed extensively at census field officer training from 5 April to 3 May 1996, which I conducted.
13. The Applicant flew up to Broome on 24 May 1996 to begin preparations for work as a census field officer for the census night that was due to take place on 6 August 1996.
14. After the Applicant had been flown to the East Kimberley region, it became apparent that he could not commence his duties until certain cultural issues arising from the death of his predecessor were addressed.
15. The beginning of his duties was therefore delayed so that the Applicant and other Australian Bureau of Statistics' officers could perform various services under Aboriginal law to ensure that the Applicant and the Australian Bureau of Statistics could continue working 'trouble free' in the area.
16. The services took the form of a special funeral ceremony to 'close the business' with the community concerned and the officer. At this point the Applicant was then able to recommence his duties in the East Kimberley region.
17. Derby was a temporary home base for the Applicant until the cultural issues had been finalised on Friday, 14 June 1996.
18. The Applicant then returned to Perth for training from 17 June to 21 June 1996.
19. I conducted the training sessions in Perth. I informed the census field officers, including the Applicant, that they would be issued with a DAS fleet petrol card which could be used to fill up with petrol at no cost to the census field officers providing such travel was authorized, ie. that it was within the designated service or workload area.
20. Travel outside of the designated workload areas was not expected or permitted unless expressly advised by myself. I advised the Applicant that his designated service or workload area was the East Kimberley region.
21. At this meeting I informed the Applicant that an appropriate base from which he could conduct his work in the East Kimberley region would be Hall's Creek, Kununurra or Wyndham.
22. I also advised the census field officers that they were required to report back to myself three times a week and report their positions, their timetable to completion and the number of communities to completion. Census field officers were issued with an advance travel allowance for accommodation and living expenses, as well as an Australian Government credit card for use in work-related expenses or emergency situations.
23. I informed the Census field officers at training that as soon as possible after census night, the census forms had to be collected and returned to the Australian Bureau of Statistics in order to be processed in the Eastern States. The longer the collection phase, the more difficult it was to collect forms as many Aboriginal inhabitants were nomadic and would move away.
24. I informed the census field officers that particularly around census night, time was of the essence, and that the Australian Bureau of Statistics would be grateful if they worked weekends and after hours in order to complete the activities that they were required to do in the designated work area in order to get the census field work into the Australian Bureau of Statistics on time. This was particularly emphasised with the Applicant as the commencement of his duties in the East Kimberley region had been delayed by about 6 weeks.
25. I informed the census field officers that if they were required to work extra hours to complete their required tasks, that time off in lieu was provided.
26. All census field officers who worked around the period of time that the Applicant worked, made claims for time off in lieu because they were required to work extra hours to complete their tasks by census night.
27. On 24 June 1996, after his period of training in Perth, the Applicant flew to Broome to collect his 4WD vehicle, meet up with his assistant Mr Spratt and head to the East Kimberley region.
28. The workload area designated for the Applicant and his assistant Mr Spratt, was the East Kimberley region incorporating the towns of Halls Creek, Turkey Creek, Wyndham and Kununurra and surrounding communities.
29. The Applicant was required to visit Derby to collect a motor vehicle during the week commencing 22 July 1996 but after this time there was no other reason to attend Derby whatsoever.
30. In the Applicant's claim form he has stated that he was involved in a motor vehicle accident 135 kilometres west of Fitzroy Crossing along the Great Northern Highway when he collided with cattle while driving towards Derby.
31. I recall speaking to Ms Angela Brennan at the Yiyili community, located approximately 100 kilometres west of Halls Creek, who informed me that the Applicant had attended the Yiyili community at approximately 8.30pm on Friday, 16 August. She also advised that they had left at 9pm that night.
32. Yiyili community comprises the western most point of the Applicant's designated workload, along the Great Northern Highway.
33. Mr Spratt stated in his claim form that Mr Pilkington and himself were travelling back to Derby at this time, which they considered was their home base. Derby is located approximately 400 kilometres from Yiyili community, and is outside the Applicant's and Mr Spratt's designated work area. The accident occurred some 300 kilometres outside of the designated work area.
34. Following the motor vehicle accident it was necessary to arrange for Mr Lennox Cummings, another census field officer and myself, to complete the collection of census forms that had not been obtained by the Applicant or Mr Spratt prior to the accident.
35. A number of communities and smaller outstations had not been approached by the Applicant and Mr Spratt. It was necessary for myself and Mr Cummins to spend an additional 2-3 weeks visiting and enumerating indigenous communities and householders in the East Kimberley region.
36. I refer to the statutory declaration of Mr Lionel Claude Spratt dated 9 November 1999 and dispute the necessity to have mail planes fly in census forms from the Ringer's Soak Aboriginal community which is approximately 170 kilometres from Halls Creek. I also dispute that any conversation took place between myself and Mr Spratt regarding his pay, or that any conversation between myself and Mr Spratt took place at this time.
37. I also dispute that any conversation took place to the effect that I would contact the Applicant or Mr Spratt upon their arrival at Derby or that I even knew, or impliedly, or expressly authorized the journey to Derby, or that I would agree to contact them at Carol Martin's place at Derby.
38. There was no reason for Mrs Judy Gelmi to arrange payment to Mr Spratt upon his arrival at Derby."

In his oral evidence, Mr Jones said that, in his capacity as State Indigenous Manager in the ABS for the purpose of the 1996 census, he recruited Census Field Officers who were then assigned to various regions across Western Australia and were responsible for the carrying out of census duties in their region. He confirmed that, in the abovementioned capacity, he had recruited the applicant who was subsequently assigned to the East Kimberley region.
Mr Jones was questioned by Mr Pilkinton (for the respondent) in relation to Census Field Officers travelling outside their designated areas and, in particular, the applicant's journey between Halls Creek and Derby on 16 August 1996 during which the relevant motor vehicle accident occurred. Mr Jones' evidence was as follows:
"Okay. So is it the case that anybody wishing to travel outside their designated area they needed to seek your prior permission? --- That's right.
All right. And Mr Pilkington was injured in a motor vehicle accident which occurred on 16 August 1996 and we know that he was on his way to Derby when the accident happened. Had you authorized him to travel to Derby on that Day? --- No. No, I had not.
Had you ever received any request from him to use Derby as his base for that period? --- No, I did not.
Was there any reason that you knew of for Mr Pilkington to be travelling to Derby on 16 August? --- Not for a work related reason.
No. All right. Mr Pilkington has given evidence that he telephoned you from Halls Creek at about 2 o'clock and – well, firstly, this is on 16 August. Do you recall any such conversation? --- No, I don't.
Mr Pilkington's evidence is that during the course of that conversation, 2 o'clock on 16 August 1996, he asked and you gave him permission to travel to Derby. What do you say about that? --- I don't recall the conversation and I definitely didn't give him approval to use – to travel to Derby or use Derby as a base.
All right. Thank you. Now, Mr Spratt has given evidence that he spoke to you on the same day, that's 16 August, again from Halls Creek, but according to his evidence, in the morning, and during the course of that conversation he complained to you or told you that his pay had not gone into his account. Do you recall any such conversation with Mr Spratt? --- I don't recall a conversation with Mr Spratt either.
Now, Mr Spratt has told the Tribunal that that conversation, even though he said it happened in the morning and Mr Pilkington has told us he spoke to you at 2 o'clock on the same day, that both – that firstly Mr Pilkington spoke with you, immediately followed by Mr Spratt. Do you recall that happening? --- I don't recall speaking to either of them on that day." (Transcript, p97)

In response to questioning by the Tribunal Mr Jones repeated that he could not recall speaking to the applicant or Mr Spratt by telephone on 16 August 1996, although he said that he could not categorically say that he did not speak to them on that day. As regards his earlier evidence-in-chief to the effect that he did not give the applicant approval to travel to Derby on 16 August 1996, he reiterated:
" I didn't give permission in any conversation with Mr Pilkington that he could use Derby as a base, whether it was a conversation that I had that day or other (sic) day. I definitely know that I didn't approve that.
…
I didn't give him permission to use Derby or to go to Derby."
(Transcript, p102)

Earlier in his evidence-in-chief, Mr Jones had confirmed that Derby was outside the applicant's designated work area. He also confirmed that Census Field Officers were supposed to give him progress reports by telephone three times per week but that the frequency of the applicant's progress reports varied and that he telephoned in "maybe once or twice a week."

As regards the applicant's evidence regarding his proposal to travel from Halls Creek to Derby on 16 August 1996 and then from Derby to Kununurra via the Gibb River Road, Mr Jones said that he thought that was an unreasonable proposal, having regard to the locations of the communities within the applicant's designated work area that he was required to visit and the fact that the applicant's proposed route was mostly outside his designated area. He said that it would have been more logical for the applicant to have travelled in the opposite direction from the Yiyili community back to Halls Creek and then north to Kununurra in order to access the communities west of Kununurra along the Gibb River Road. That journey would have been entirely within the applicant's designated area and would have been a much shorter journey than the applicant's proposed journey from Yiyili community to Kununurra via Derby.
Mr Jones acknowledged that the applicant had a fair amount of discretion and flexibility in the carrying out of his census duties, including travelling within and outside his designated area, but he said that this was subject to the proviso that any course of action proposed must be an effective and reasonable one in relation to carrying out his duties. He reiterated that he would not have considered a journey by the applicant from the Yiyili community to Kununurra via Derby to be a reasonable journey having regard to the applicant's workload and the distance involved. Asked whether he would have been open to persuasion by the applicant in relation to such a proposed journey, Mr Jones said that it would have required a very strong case before he would have approved such a journey, given that "the normal direction for his work was the opposite". (Transcript p130)
The issue
The general issue in this matter is whether the respondent is liable under s14(1) of the Act to pay compensation to the applicant in respect of any incapacity for work or impairment suffered by him as a result of the relevant motor vehicle accident in which he was injured on 16 August 1996.
The legislation
Section 14(1) of the Act provides:
"Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

The word "injury" is relevantly defined in s4(1) of the Act to mean (inter alia):

"(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment;".

Section 6(1) of the Act relevantly provides:

"Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(b) while the employee:
…
(ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
(iii) was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment;
(iv) was travelling between one of his or her places of work and another of his or her places of work;
…".

The phrases "place of residence" and "place of work" are defined in s4(1) of the Act as follows:

" 'place of residence', in relation to an employee, means:
(a) the place where the employee normally resides;
(b) a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment; or
(c) any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph(a);

'place of work', in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment;".

The submissions

The applicant submitted that Mr A Jones had given him express permission to travel outside his designated area to Derby on 16 August 1996 and that, accordingly, the injury sustained by him in the relevant motor vehicle accident which occurred during that journey to Derby was sustained in the course of his employment with ABS and was therefore compensable pursuant to s14(1) of the Act.
Mr Pilkinton (for the respondent) submitted that the injury sustained by the applicant in the abovementioned motor vehicle accident on 16 August 1996 while travelling outside his designated area en route to Derby was not sustained in the course of the applicant's employment with the ABS and, accordingly, was not compensable pursuant to s14(1) of the Act. In support of that general submission, Mr Pilkinton submitted that :
·the applicant did not have official permission to make the abovementioned journey outside his designated area to Derby;
·none of the "journey provisions" in s6(1)(b) of the Act, whereby an injury sustained while travelling between specified places is treated as having arisen out of, or in the course of, employment, was applicable in this case; and
·the abovementioned motor vehicle accident in which the applicant was injured could not be regarded as having otherwise occurred "in the course of" the applicant's employment and, accordingly, the applicant did not sustain an "injury", as defined in s4(1), and for the purposes of s14(1), of the Act.

Findings on material questions of fact and consideration of submissions

The applicant's case, as presented by him to the Tribunal, depended entirely for its success on a finding by the Tribunal that Mr A Jones, the ABS State Indigenous Manager to whom he was responsible for the carrying out of his census duties, had expressly given him permission to travel outside his designated area to Derby on 16 August 1996. The applicant acknowledged in his oral evidence that he was aware that he was required to stay within his designated area of the East Kimberley region for employment purposes, unless he had permission to be outside that area, and that this was a "pretty strict" arrangement.
The applicant's case as presented to the Tribunal, therefore, requires the Tribunal to make a finding on the factual question of whether or not Mr Jones expressly gave permission to the applicant to travel outside his designated area to Derby on 16 August 1996. The oral evidence of the applicant and Mr Jones regarding that matter was in stark conflict: the applicant testified that Mr Jones had expressly given him permission to travel to Derby on 16 August 1996, in the course of a telephone conversation between them earlier that day, whereas Mr Jones testified that, although he had no recollection of such telephone conversation, he "definitely" did not give the applicant approval to travel to Derby or to use Derby as a work base in any conversation between them, whether on that day or on any other day.
The Tribunal has some reservations regarding the reliability of the applicant's evidence in relation to the abovementioned matter of whether or not Mr Jones expressly gave him permission to travel to Derby on 16 August 1996. Those reservations arise because of the presence of certain inconsistencies between the accounts of the relevant events of that day, prior to the motor vehicle accident, given by the applicant on different occasions, and between the oral evidence given by the applicant and by Mr Spratt to the Tribunal in the hearing of this matter.
As regards the applicant's accounts of the events of 16 August 1996, in response to a request for relevant information made by the respondent following the lodgment of his claim for compensation, the applicant, in an undated letter received by the respondent on 11 November 1996 (T17), stated that he departed from Kununurra at about 2.00pm on 16 August 1996 with an expected time of arrival at Halls Creek being 6.30pm. In his oral evidence, however, the applicant said that at about 2.00pm on 16 August 1996 he telephoned Mr Jones from Halls Creek (which, the Tribunal notes, is approximately 350 kilometres south of Kununurra) and it was during that conversation that Mr Jones gave him permission to travel to Derby. Mr Spratt, on the other hand, stated in his oral evidence that the applicant telephoned Mr Jones from Halls Creek in the morning of 16 August 1996 and that he and the applicant each spoke separately with Mr Jones during the course of that telephone call. Mr Spratt did not refer in his evidence to any telephone call from the applicant to Mr Jones in the afternoon of that day. Mr Spratt was unable, furthermore, to corroborate the applicant's evidence that Mr Jones gave him permission to travel to Derby on that day – he told the Tribunal that the applicant first mentioned to him that they would be going to Derby late in the afternoon of 16 August 1996 and that he simply assumed that the applicant had spoken with Mr Jones about that during the telephone conversation in the morning of that day.
Mr Jones, on the other hand, has consistently maintained that he did not at any time authorize or give permission to the applicant to travel to Derby on 16 August 1996. In a written statement dated 4 October 1996 (T13) to the respondent in relation to the applicant's claim for compensation, Mr Jones stated:
"At no time was I informed of or authorized their travel to Derby on 16/8/96 and upon leaving Yiyili I would have expected that they return to Halls Creek for continuation of duties.
At no stage was Derby authorized by me either verbally or in writing as a base at weekends or during the week from which to do their work."

In his written outline of evidence (Exhibit R4) and in his oral evidence to the Tribunal, Mr Jones firmly adhered to that position.

The only other evidence before the Tribunal touching on this matter is a written statement, dated 18 March 1999 (Exhibit A2), made by Carol Anne Martin, the sister of the applicant. In that statement Ms Martin referred to a conversation between herself and Mr Jones and claimed that in that conversation she suggested to Mr Jones that the applicant should use Derby (where she lives) as his base where she would provide him with access to a telephone, fax, computer and an office. According to Ms Martin's statement, Mr Jones "said that should not be a problem" and thanked her for the offer. The statement goes on to say that it was thus her understanding that the applicant could use Derby as a base and that she spoke to the applicant about this, but that she did not suggest to Mr Jones that he discuss the matter with the applicant and that she is not aware whether or not Mr Jones discussed the matter with the applicant. The Tribunal derives little assistance from that written statement. Although that statement indicates that Mr Jones was not averse to the suggestion that the applicant use Derby as a base, it does not directly contradict Mr Jones' sworn oral evidence that he did not in fact at any time authorize the applicant to use Derby as a base. As regards the more specific matter of whether or not Mr Jones gave the applicant permission to travel to Derby on 16 August 1999, Ms Martin's statement is of no assistance.
Having regard to the whole of the evidence, the Tribunal regards the evidence of Mr Jones as more reliable that that of the applicant in relation to the matter of whether or not Mr Jones gave the applicant permission to travel to Derby on 16 August 1996. Mr Jones' evidence that he did not give such permission to the applicant was given firmly and unequivocally and was completely consistent with his initial statement to the respondent on this matter, dated 4 October 1996. The credibility of the applicant's evidence that Mr Jones did give him such permission is, in the Tribunal's opinion, somewhat undermined by inconsistencies between his own versions (given on different occasions) of the events of 16 August 1996, and between his, and Mr Spratt's, oral evidence relating to the events of that day (see paragraph 42 above). The Tribunal also notes that the applicant's evidence that Mr Jones gave him permission to travel to Derby on 16 August 1996 is not corroborated by any other evidence before the Tribunal and is, of course, self-serving. Placed by the applicant in a situation in which it is required to choose between accepting the applicant's evidence and accepting Mr Jones' evidence, the Tribunal prefers to accept the evidence of Mr Jones.
Accordingly, the Tribunal finds that the applicant was not at any time expressly authorized or given permission by Mr Jones to travel outside his designated area to Derby on 16 August 1996.
In the light of the finding stated in the preceding paragraph, the Tribunal now turns to the substantive issue in the case – namely, whether the injury sustained by the applicant in the motor vehicle accident which occurred while he was travelling between the Yiyili community and Derby on 16 August 1996 arose out of or in the course of his employment as a Census Field Officer with the ABS.
The Tribunal will first consider whether any of the "journey provisions" in s6(1)(b) of the Act can be successfully relied on by the applicant in this case.
Section 6(1)(b)(ii) refers to a journey between the employee's "place of residence" (as defined in s4(1)) and "place of work" (as also defined in s4(1)). Although places within the applicant's designated area (including the Yiyili community) were "places of work", Derby was not a "place of work" because the applicant was neither required nor authorized to go to Derby at the relevant time for the purpose of carrying out his employment duties. Was Derby a "place of residence" in relation to the applicant? The Tribunal finds that it was not a "place of residence" because, in terms of the statutory definition of that phrase:
·Derby was not the place where he normally resided (para(a));
·Derby was not a place where he resided temporarily, as a matter of necessity or convenience, for the purposes of his employment as a Census Field Officer for the East Kimberley region, given that Derby is located approximately 450 kilometres outside the boundary of his designated area (para(b));
·there was no evidence before the Tribunal on the basis of which it could find that para (c) of the statutory definition was satisfied.

Accordingly, the Tribunal finds that s6(1)(b)(ii) of the Act does not apply in this case.

Section 6(1)(b)(iii) refers to a journey between the place where the employee normally resides and another place, being a place where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment. As already mentioned, Derby was not the place where the applicant normally resided and there is no evidence before the Tribunal regarding the place, within his designated area, where he normally resided. In addition, as already mentioned, Derby, given its remoteness from the applicant's designated area, was not a place where he resided temporarily, or as a matter of necessity or convenience, for the purposes of his employment. Accordingly, the Tribunal finds that s6(1)(b)(iii) of the Act does not apply in this case.
Section 6(1)(b)(iv) refers to a journey between the employee's places of work. As already mentioned, Derby was not one of the applicant's "places of work" because he was neither required nor authorized to go to Derby at the relevant time for the purpose of carrying out his employment duties. Accordingly, the Tribunal finds that s6(1)(b)(iv) of the Act does not apply in this case.
Finally, the Tribunal turns to consider whether the motor vehicle accident on 16 August 1996 in which the applicant was injured en route to Derby could be regarded as having otherwise occurred in the course of his employment as a Census Field Officer with the ABS. In Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 Dixon J said (at p 133):
"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…".

In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Mason CJ, Deane, Dawson and McHugh JJ said (at p 484):

"…it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment 'and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.'"

Applying those principles to the circumstances of the present case, the Tribunal finds, on the basis of the evidence before it – particularly the evidence of Mr Jones which the Tribunal accepts – that the motor vehicle accident on 16 August 1996 in which the applicant was injured en route to Derby did not occur in the course of his employment as a Census Field Officer with the ABS because that accident occurred at a location some 300 kilometres outside the applicant's designated work area in the course of a journey to Derby (some 450 kilometres outside his designated work area) which he was not required, expected or authorized by his employer to undertake in order to carry out his census duties, and which he was not induced or encouraged, expressly or impliedly, by his employer to undertake. The Tribunal finds that Mr Jones, the applicant's immediate supervisor, did not at any time expressly require, expect, authorize, induce or encourage the applicant to travel to Derby on 16 August 1996. It follows from that finding, together with the applicant's own evidence that he was aware that he required express permission from Mr Jones in order to travel outside his designated area for employment purposes, that no question of the applicant's having been impliedly authorized, induced or encouraged to travel to Derby on 16 August 1996 can arise.
Conclusion
The Tribunal concludes, therefore, that the respondent is not liable under s14(1) of the Act to pay compensation to the applicant in respect of any incapacity for work or impairment suffered by him as a result of the relevant motor vehicle accident in which he was injured on 16 August 1996.
Decision
For the above reasons the Tribunal affirms the decision under review.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor SD Hotop, Deputy President
Brigadier RDF Lloyd, Member
Dr D Weerasooriya, Member
Signed:
..........................(sgd S Railton)...........................
Associate
Date/s of Hearing  26 and 27 April 2000
Date of Decision  26 September 2000
Counsel for the Applicant        In person
Solicitor for the Applicant
Counsel for the Respondent    Mr S Pilkinton
Solicitor for the Respondent    Downings Legal