Rapson v WorkCover Corporation - [2007] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
RAPSON v WORKCOVER CORPORATION
[2007] SASC 172
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice White and The Honourable Justice Kelly)
17 May 2007
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - STATED CASE
Decision on questions of law referred for the opinion of the Full Court by the Workers Compensation Tribunal - Workers Rehabilitation and Compensation Act 1986 (SA), s 86A - questions referred in the course of an appeal from a judicial determination of a claim for compensation - whether questions appropriate for referral to the Full Court - discussion of principles.
Held: questions inappropriate for referral to the Full Court - Court declines to answer any of the questions.
Workers Rehabilitation and Compensation Act 1986 (SA), s 30, s 53, s 86A, s 91, Part 6B, referred to.
Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; Re Alcoota Land Claim No 146 (1998) 82 FCR 391; Pearce v Federal Commissioner of Taxation (1978) 20 ALR 354; TransAdelaide v Karanicos (Unreported, Supreme Court of SA, Full Court, Judgment No 5536, 3 April 1996); State of South Australia v Brophy (1997) 68 SASR 97, applied.
Rapson v WorkCover Corporation [2005] SAWCT 105; Rapson v WorkCover Corporation [2006] SAWCT 48, discussed.
R v Gee (2003) 212 CLR 230; Mack v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373; Dickson v The Commissioner of Taxation (NSW) (1925) 36 CLR 489; R v Rigby (1956) 100 CLR 146; Australian National Railways Commission v Beesley (1999) 73 SASR 414; Corporation Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, considered.

RAPSON v WORKCOVER CORPORATION
[2007] SASC 172
Full Court: Duggan, White and Kelly JJ

DUGGAN J: I would decline to answer the questions referred to this Court by the Tribunal.
I agree with the reasons of White J.
WHITE J: This is a decision on questions of law referred by the Full Bench of the Workers Compensation Tribunal (“the Tribunal”) on 15 January 2007 for the opinion of this Court.[1]
[1] Pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) s 86A.
In my opinion, it is inappropriate for this Court to answer any of the four questions which were referred. My reasons for that conclusion follow.
Background Circumstances
The questions were referred by the Tribunal in the course of its consideration of an appeal from the judicial determination of a claim for compensation by the widow of a deceased worker. They are contained in a document entitled “Case Stated” and it is convenient to continue to refer to the referral in that manner.
The statement of facts in the Case Stated is brief, namely:
Kevin Rapson was killed in a motor vehicle accident on the evening of 30 September 2003, during the course of the journey from a farming property at which he had been working for F Westphal Nominees Pty Ltd and his residence.
Mr Rapson was driving the motor vehicle, which was owned by Westphal.
At the time of the accident Mr Rapson was accompanied by a co-employee Mr Cother, who had left his vehicle at Mr Rapson’s residence. This vehicle was also owned by Westphal. Hence Mr Rapson’s journey to his residence was not only for the purpose of returning home but was also for the purpose of transporting Mr Cother to the place at which his vehicle had been parked.
Further background circumstances can be found in the reasons of the single member of the Tribunal[2] and in a document entitled “Preliminary Views” published by the Full Bench.[3] From those documents, it can be seen that Mr Rapson resided in the town of Frances, close to the South Australian-Victorian border in the South-East of this State. Mr Cother resided in Victoria near Minimay, approximately 25 kilometres from Frances. The employer owned several farm properties in western Victoria as well as in the South-East. On 30 September 2003 Mr Rapson and Mr Cother were carrying out work on a property at Wolseley in South Australia, approximately 50 kilometres north of Frances. Both Mr Cother and Mr Rapson had employer‑supplied work utilities. Each could have driven separately to the Wolseley property. However the employer had instructed them that they should travel together. It seems that in accordance with this instruction, Mr Cother drove his vehicle from Minimay to Frances and left it (presumably by arrangement) at Mr Rapson’s home. It seems that he then accompanied Mr Rapson to the Wolseley property and, at the completion of the work, was accompanying him back to Frances for the purposes of retrieving his own vehicle. The accident causing the fatal injuries to Mr Rapson occurred in the course of that journey.
[2] Rapson v WorkCover Corporation [2005] SAWCT 105.
[3] Rapson v WorkCover Corporation [2006] SAWCT 48.
Following its statement of the facts, the Case Stated continued under the heading “The Issue”:
Section 30 of the Act sets out the general conditions under which a disability is compensable for the purposes of the Act. It relevantly provides as follows:-
“30.(1) Subject to this Act, a disability is compensable if it arises from employment.
(2) Subject to this section, a disability arises from employment if-
(a)In the case of a disability that is not a secondary disability or a disease – it arises out of or in the course of employment;
…
(5)A disability that arises out of, or in the course of, a journey arises from employment only if –
(a)the journey is undertaken in the course of carrying out duties of employment; or
(b)the journey is between –
(i)the worker’s place of residence and place of employment; or
(ii)the worker’s place of residence or place of employment and –
(A)an education institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer’s request or with the employer’s approval; or
(B)a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability,
and there is a real and substantial connection between the employment and the accident out of which the disability arises.
(6)However, the fact that the worker has an accident in the course of a journey to or from work does not in itself establish a connection between the accident and the employment for the purposes of subsection (5)(b). …”
The issue that divides the parties is whether the circumstances of Mr Rapson’s accident are compensable for the purposes of the Act.
The approach of the learned Senior Judge in the decision under appeal seems to reflect an understanding that:-
(i)the accident occurred in the course of a journey that was a journey for the purposes of s 30(5)
(ii)s 30(5) is an exclusive code that applies to such journeys
(iii)as such it was not sufficient that at the time of the accident Mr Rapson might have been in the course of his employment – what mattered was whether at the time he was carrying out the duties of his employment
(iv)the concept of “duties of employment” is a narrower one than “in the course of employment”.
The decisions of the Full Supreme Court in TransAdelaide v Karanicos (unreported Supreme Court of SA Doyle CJ, Millhouse and Williams JJ, S5536 of 1996, delivered 3 April 1996) and State of South Australia v Brophy (1997) 58 SASR 97 have left open a number of questions about the proper interpretation of s30(5) of the Act.
Accordingly in consultation with the parties, we have resolved to exercise the powers conferred upon us by s86(A) of the Act to seek the guidance of the Full Court of the Supreme Court and to seek its answers to the following questions;
Following that statement of the issue, the Case Stated then posed for the consideration of this Court the following four questions:
1. Is s 30(5) an exclusive code in respect of journeys?
2. If s 30(5) is an exclusive code, is there, in the context of s 30, any difference between the expression “duties of employment” and the expression “in the course of employment” and if so how are they different?
3. If s 30(5) was intended to provide that;
“A disability that arises out of or in the course of a journey between –
(i)a worker’s place of residence and place of employment; or
(ii)a worker’s place of residence or place of employment and –
(A)an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer’s request or with the employer’s approval; or
(B)a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability
arises from employment only if –
(a)the journey is undertaken in the course of carrying out duties of employment; or
(b)there is a real and substantial connection between the employment and accident out of which the disability arises.”
could a place of residence also be regarded as a place of employment and if so does section 30(5) apply to journeys between such a place and a place of employment?
4. Are return journeys to be treated in exactly the same way as outward journeys in determining their appropriate characterisation for the purposes of s 30(5)?
Use of the Case Stated Procedure
The case stated procedure is a useful mechanism by which questions of law may be authoritatively determined by this Court. It is especially useful in the context of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRCA”), as there is no means of appeal of any kind from the Tribunal to this Court.
However, there are limitations on the availability of the procedure. It cannot be used to have this Court give mere advisory opinions, or to answer questions which are hypothetical, or which, if they are to have any application in the case giving rise to the referral, depend upon further findings of fact. The answers on the case stated must be capable of determining the rights and liabilities of the parties, or at least of resolving an intermediate step in the determination of those rights. It is not open to this Court in the course of a case stated to make findings of fact, or even to draw inferences from facts included in the case stated. Support for the propositions just stated can be seen in a number of authorities.
In Director of Public Prosecutions (SA) v B,[4] Gaudron, Gummow and Hayne JJ said of the case stated in that case:
The questions reserved in this case were cast in very general terms, apparently unrelated to any facts, not even the facts in the case stated. That the questions were so general is, itself, a strong indication that they did not arise at any trial. … The failure to connect the questions with the facts stated in the case might be seen as some drafting defect that should not be permitted to impede the resolution of the questions. But the generality of the questions that were referred is not simply a defect in drafting. It is a symptom of a more deep-seated problem.
The difficulties in the case stated procedure, whether the case is stated in a criminal or civil matter or, if in a criminal matter, whether stated at the instance of the prosecution or defence, are well known. At least some of those difficulties stem from a failure to recognise that the jurisdiction is not conferred to permit courts to offer general advisory opinions on hypothetical questions. The questions reserved in this matter appear to invite such an opinion.[5] [Citations omitted]
[4] [1998] HCA 45; (1998) 194 CLR 566.
[5] Ibid at [11]–[12]; 576. See also R v Gee [2003] HCA 12 at [144]–[145]; (2003) 212 CLR 230 at 277‑278 per Kirby J.
In Bass v Permanent Trustee Co Ltd[6] the majority judgment of the High Court again emphasised the inappropriateness of courts addressing questions which are hypothetical. It was said:
As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state – let alone answer – preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.[7] [Emphasis added]
[6] [1999] HCA 9; (1999) 198 CLR 334.
[7] Ibid at [49]; 357 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
Earlier authority has made the point that, in the absence of a statutory authority, it is not open to a court considering questions of law referred to it, to make its own findings of fact, or even to draw inferences from the facts disclosed to it.[8] On a case stated, the facts stated in the case are to be taken as the ultimate facts for the purposes of the case stated.[9]
[8] Mack v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 per Isaacs J; Dickson v The Commissioner of Taxation (NSW) (1925) 36 CLR 489 at 497 per Isaacs J.
[9] Mack v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 per Isaacs J. See also R v Rigby (1956) 100 CLR 146 at 151 per curiam; Australian National Railways Commission v Beesley [1999] SASC 170 at [22]–[24]; (1999) 73 SASR 414 at 420–1 per Lander J.
The limitations on the availability of the case stated procedure, particularly in circumstances which depend upon the application of legal principles to a complex factual setting, were addressed by the Full Federal Court in Re Alcoota Land Claim No 146.[10] The Court, comprised of Northrop, Cooper and Mansfield JJ, said:
The case stated procedure ought not be adopted where there are disputed questions of fact which impinge upon the question or questions of law reserved for determination. Nor is it appropriate where the answer to the question depends upon the impact of detailed and complex findings of fact upon legal principles which are flexible in their application and therefore inextricable from those facts.[11] [Citation omitted]
[10]. (1998) 82 FCR 391.
[11] Ibid at 394. See also Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 at [131]–[ 141]; (2001) 109 FCR 488 at 519–522 per Sackville J.
The authorities make it plain that a dissertation, or an advisory opinion, on a statutory provision, unrelated to the facts of a case, is an inappropriate use of the case stated procedure. For example, Brennan J (when a member of the Federal Court) said in Pearce v Federal Commissioner of Taxation:[12]
…There is a particular difficulty when the question reserved seeks in substance a mere judicial exegesis of a statutory provision unrelated to any facts. The court is then invited not to apply the statute but to devise precise synonyms for the statutory language. This is a course on which this court ought not to embark.[13]
[12] (1978) 20 ALR 354.
[13] Ibid at 357. See also Bowen CJ at 356.
The questions reserved for the consideration of the Full Court in this case have to be considered with these principles in mind.
The Course of the Proceedings in the Tribunal
The claim for compensation in respect of Mr Rapson’s death was rejected by WorkCover’s claims agent on 13 May 2004. By a judicial determination dated 13 December 2005 the single member of the Tribunal confirmed the rejection of the claim.
Both at first instance, and on appeal to the Full Bench of the Tribunal, Mrs Rapson sought to bring her claim within s 30(5) of the WRCA. That is, Mrs Rapson accepted that her husband’s death arose out of, or in the course of, a journey for the purposes of s 30(5). Her claim was that the journey in which her husband was engaged was “undertaken in the course of carrying out duties of employment” (s 30(5)(a)) or, alternatively, that it was between her husband’s place of employment and his place of residence and that there was a real and substantial connection between his employment and the accident resulting in his death (s 30(5)(b)).
Looked at broadly, under s 30(2) a disability (other than a secondary disability or a disease) is compensable if it has either a temporal or causal relationship with the worker’s employment. In contrast, s 30(5) indicates that a disability arising from a journey will be compensable only if the journey was undertaken in the course of carrying out duties of employment, or, in relation to a journey between the place of employment and place of residence, if there was a real and substantial connection between the employment and the accident out of which the disability arose. It has apparently been suggested in argument in some cases in the Tribunal that there may be some disabilities arising from a journey which, while not within s 30(5), may nevertheless be compensable by virtue of the operation of s 30(2). This has given rise to a question in the Tribunal of whether s 30(5) is to be treated as an “exclusive code”, ie, a provision stating exhaustively the circumstances in which a disability arising out of, or in the course of, a journey is to be compensable.
The inter‑relationship between s 30(2) on the one hand and s 30(5) on the other has been mentioned in two decisions of this Court: TransAdelaide v Karanicos[14] and State of South Australia v Brophy.[15] In the latter case, Doyle CJ (with whom Bollen and Duggan JJ agreed) said:
There is also reason to think that subs (5) is intended as an exclusive code in relation to a disability that arises out of or in the course of a journey. This is suggested by the opening provision of that subsection, and by the fact that subs (2) now begins with the words “Subject to this section”.[16]
However, it does not appear that Doyle CJ was expressing a concluded view on the point. It seems that it is uncertainty about the position in this respect which lies behind Questions One and Two in the present Case Stated.
[14] (Unreported, Supreme Court of SA, Full Court, Judgment No 5536, 3 April 1996).
[15] (1997) 68 SASR 97.
[16] Ibid at 101.
The Inappropriateness of the Questions
Before considering the questions individually, I make some general observations. None of the four questions raised for this Court’s consideration refer to, or are related to, the underlying facts of Mrs Rapson’s claim. Instead, it can fairly be said (using the words of Brennan J) that each question “seeks in substance a mere judicial exegesis of statutory provision unrelated to any facts”.[17] By itself this indicates the inappropriateness of the questions.
[17] Pearce v Federal Commissioner of Taxation (1978) 20 ALR 354 at 357.

That inappropriateness is underlined by the circumstance that both Mrs Rapson and the compensating authority, while holding contradictory views about the appropriate fate of the claim for compensation, are in substantial agreement as to the way in which the questions should be answered. That serves to indicate that any answers by this Court to the questions will be of limited (if any) utility to the parties. The answers of this Court will not be determinative of the legal issues arising in relation to the claim of Mrs Rapson, and will not even determine finally an intermediate step in the resolution of her claim.
The Full Bench of the Tribunal itself considered that the single member may not have made all the findings of fact necessary for the determination of the claim.[18] The Full Bench contemplated that the matter may have to be remitted to the single member for further findings of fact.[19] The uncertainty about the factual findings also indicates the inappropriateness of the referral.
[18] Rapson v WorkCover Corporation [2006] SAWCT 48 at [18], [63].
[19] Ibid at [65].
Question One raises an issue which, the Court was informed, had not been raised by either party in the Tribunal. As noted above, Mrs Rapson’s case was that her claim was within s 30(5). Whether or not Mrs Rapson recognised the force of the passage in Brophy quoted above, she did not seek to advance an argument that, in the event that her claim did not fall within s 30(5), her claim might nevertheless come with s 30(2). In those circumstances, Question One raises an issue which, in the proceedings before the Tribunal, is (and was) hypothetical.
Question Two raises an issue which is not tied in anyway to the facts of Mrs Rapson’s claim. The identification of any difference in the concepts of “duties of employment” appearing in s 30(5)(a) and “in the course of employment” appearing in s 30(2) may be a matter of interest, but it will not resolve (nor lead to the resolution of) any aspect of Mrs Rapson’s claim.
Question Three is entirely hypothetical. It pre-supposes a different form of expression of s 30(5), and then raises a question derived from that different expression. It is not appropriate for this Court to answer such a question. Statutory construction involves an identification of the meaning of the words actually used by the legislature.[20]
[20] Cf Corporation Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 321 per Brennan J.
In relation to the fourth question, the Court was informed that neither party argued in the Tribunal that there was any difference, for the purposes of s 30(5), between a journey from a place of residence to a place of work, on the one hand, and a journey from a place of work to a place of residence, on the other. Again therefore, the answer by this Court to the fourth question will not resolve any issue between the parties.
Accordingly, I would decline to answer each of the questions referred to this Court. In my opinion none of them raise an issue appropriate for consideration by this Court on the referral of a question of law pursuant to s 86A of the WRCA.
General
One cannot help but be concerned about the long period which has elapsed since the death of Mr Rapson, and since the making of the claim for compensation, without the claim being determined. It is the clear policy of the WRCA that claims for compensation, and any disputes arising from those claims, should be resolved expeditiously.[21] More than three years have now elapsed since the making of the claim by Mrs Rapson on 27 January 2004. Having regard to that circumstance, I add the following in case it may be of assistance to the Tribunal.
[21] See WRCA s 53(4), s 53(5), s 91(5) and Part 6B.
In the way in which the claim was presented, it seems that there were in substance three issues to be addressed by the Tribunal. First, was the journey during which Mr Rapson sustained his fatal injuries “undertaken” by him “in the course of carrying out duties of employment”? Secondly, and alternatively, was Mr Rapson engaged in a journey between his place of employment and his place of residence? Thirdly, if the second question be answered in the affirmative, was there a real and substantial connection between the employment and the accident in which Mr Rapson sustained the fatal injuries? In what follows, I address some matters relating to the first of these issues.
The resolution of that issue seems to require, at the least, a consideration of the purpose, or purposes, of the journey. I say that having regard, in particular, to certain passages in TransAdelaide v Karanicos[22] and State of South Australia v Brophy.[23] Resolution of the first question would also seem to involve an identification of the duties of employment of Mr Rapson at relevant times. Thus far, there do not seem to have been detailed findings about these matters. In addition, there do not seem to be detailed findings as to the movements of each of Mr Rapson and Mr Cother on 30 September 2003. There is a finding that Mr Rapson and Mr Cother were directed by the employer not to take each of the employer‑supplied vehicles to the Wolseley property. It is not clear whether Mr Rapson was directed to travel with Mr Cother, or vice‑versa, nor is it clear whether the direction was in the nature of a standing instruction, or one given on 30 September 2003 itself. Presumably (although this is a matter of inference) the direction that the two workers were to travel together included, explicitly or implicitly, a direction that the worker whose vehicle was used was to transport the other back to his vehicle, or to his home, as the case may be, at the end of the day’s work.
[22] (Unreported, Supreme Court of SA, Full Court, Judgment No 5536, 3 April 1996) at [22]-[24].
[23] (1997) 68 SASR 97 at 103.
As I understand the case, it is likely that the resolution of the issues just mentioned would assist in a determination of when it was, on 30 September 2003, that Mr Rapson completed his duties for the day, ie, whether it was at the Wolseley property, or whether it was to be when he delivered Mr Cother back to his vehicle. The resolution of the matters to which I have referred (and no doubt other facts bearing on the issue) would also bear upon a consideration of the content, and operation, of the employer’s duty of care to Mr Cother. Having directed Mr Cother to work at a property a considerable distance from his home and from the employer’s principal property at Minimay, and having directed him not to use his own employer‑provided vehicle for the purposes of transport, there may be a question of whether the employer’s own duty of care required it to provide Mr Cother with transport back to his vehicle at the end of the day. That in turn may lead to a consideration of whether Mr Rapson was, in effect, performing a duty in discharging the employer’s duty of care.
The issues involved may possibly be approached in another way. In the ordinary case, an employee who finishes work then has freedom of movement, ie, to return home to the place of residence, or to go somewhere else altogether, or to stop at some place on the way home. If Mr Rapson was obliged, by the effect of the employer’s directions, to return Mr Cother to his vehicle, there may be an issue as to whether he had the usual freedom of movement.
I emphasise that I am not raising these issues for the purpose of indicating a view one way or another about how the claim for compensation should be resolved. Nor am I intending to state all the issues upon which findings of fact should be made. Instead, my intention is to indicate the necessity for there to be detailed findings of fact which are directed to the legal issues which arise. There is in this case a complex inter‑relationship between factual findings on the one hand and the legal issues on the other.
It will be a matter for the Full Bench of the Tribunal to consider whether or not it has power to remit the matter back to the single member for further findings of fact. If it is not satisfied that such a power exists, it may then have to consider other alternatives, including the question of whether an inadequacy in the factual findings at first instance raises a question of law for the purposes of s 86(1) of the WRCA.
Conclusion
For the reasons given above, I would decline to answer any of the questions referred by the Tribunal for the opinion of this Court.
KELLY J: I agree with the orders proposed by White J for the reasons he has given.