Saunders, Andrew Paul v M J Burns T/as Silviculture Specialists and MMI Insurance Limited

[1998] TASSC 164

164/1998

PARTIES:  SAUNDERS, Andrew Paul
  v
  M J BURNS t/as SILVICULTURE SPECIALISTS

MMI INSURANCE LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 64/1998
DELIVERED:  23 December 1998
HEARING DATE/S:  26 November 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Employment risks - "Arising out of and/or in the course of employment" - Presence at place of employment - What constitutes place of employment.

Van Oosterom v Australian Metropolitan Life Assurance Co Ltd [1960] VR 507; Clissold v Country Roads Board [1981] VR 259; Wilkinson v Forestry Commission 47/1986 followed.
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 applied.
Workers Rehabilitation and Compensation Act 1988 (Tas), s25(5).
Aust Dig Workers Compensation [11]

REPRESENTATION:

Counsel:
           Appellant:  C M Schokman
           Respondents:  I L Hallett
Solicitors:
           Appellant:  Piggott Wood & Baker
           Respondents:  Page Seager

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  164/1998
Number of pages:  5

Serial No 164/1998
File No LCA 64/1998

ANDREW PAUL SAUNDERS v M J BURNS t/as SILVICULTURE SPECIALISTS, MMI INSURANCE LIMITED

REASONS FOR JUDGMENT  UNDERWOOD J

23 December 19998

This is an appeal from a determination of the Workers Rehabilitation and Compensation Tribunal dismissing the appellant's claim for workers compensation.  In essence, the impugned order arose out of the following findings of fact made by the Tribunal:

• that at the time of suffering injury the appellant was not at his place of employment; and

• the injury did not arise out of and in the course of the appellant's employment with the first respondent ("the respondent").

  The five grounds of appeal attack those two findings of fact upon the basis that no tribunal, acting reasonably and properly instructed as to the law, could have made them. 

The evidence

The respondent was engaged in the business of silviculture and employed the appellant as a forest labourer.  On 18 June 1997, he and two other employees of the respondent collected a number of wire cages and loaded them onto a lorry.  The cages were to be put around newly planted trees to protect them from native animals.  The three employees picked up the cages and drove to a place known as Dawson Quarry near the Repulse Dam in southern Tasmania.  The respondent's instructions to its employees were to unload the cages in the quarry and place them out of sight of passing traffic so that they could be used later when the trees had been planted.  When the cages had been unloaded, the three employees were to return. 

The party arrived at Dawson Quarry about lunch time.  They stopped for the lunch break.  The appellant smoked some marijuana.  A considerable amount of the evidence was concerned with the issue of whether the appellant was under the influence of marijuana at the time of his injury.  This evidence supported a submission that liability did not attach to the respondent by virtue of the provisions of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s25(2)(a) which provides:

"(2)  Compensation is not payable under this Act in respect of ¾

(a)any injury which is ¾

(i)attributable to the serious and wilful misconduct of the worker, unless the injury results in the death or serious and permanent incapacity of the worker; or

(ii)an intentional self-inflicted injury;"

The learned Commissioner found against the respondent on that issue and no complaint is made with respect to that finding. 

After the lunch break, the appellant's co-workers started unloading the cages.  However, the appellant decided that he needed, as he said in evidence, to "go to the toilet".  In order to find some privacy, he went to the top of the quarry by following a path through the bush that ran around the side of the quarry face.  When he was ready to return, the appellant took the most direct route from the top of the quarry to the point where the cages were being unloaded.  He came down the face of the quarry.  In the course of this journey, he leapt down from one point on the rock face to another point, over a vertical distance of approximately three metres and a horizontal distance in the order of two to two and a half metres.  On landing, he suffered an injury to his knee which gave rise to the claim for compensation which was dismissed by the Tribunal.

The quarry lay at the side of a road.  It had probably been created to provide materials to build the road. It appears that the quarry face was not particularly high.  No findings were made by the Tribunal with respect to its dimensions, but with aid of modern technology, I annexe to these reasons for judgment photographs of the quarry face which were tendered in evidence before the Tribunal.  According to the evidence in the Tribunal, the two men shown in the photograph as standing on the quarry face, mark the points from which, and to which, the appellant jumped and consequently suffered his injury.  Almost directly beneath the lowest point can be seen a large rock resting on the ground.  The cages were being unloaded and stored behind that rock. 

Findings of the Tribunal

The learned Commissioner found as a fact that the top of the quarry was part of the appellant's place of employment, but that the quarry face was not part of the appellant's place of employment.  With respect to the top of the quarry being the place of employment, the learned Commissioner said:

"Accordingly the presence of the worker at any reasonably foreseeable place for the purpose of going to the toilet would come within the place of employment.  I am not prepared to exclude the track to the top of the quarry and the bush area at the top of the quarry for that purpose …"

It is unclear to me what the learned Commissioner meant when he referred to "any reasonably foreseeable place".  A place cannot be reasonably foreseeable.  However, it is unnecessary to make any inquiry into this, as there is no appeal against that finding of fact. 

With respect to the impugned finding, the learned Commissioner went on:

" … but I can not accept that the worker's action of climbing down the rock face of the quarry was an activity by him at his place of employment.  There was no reason arising from or incidental to his employment to require him to be on that rock face.  He had therefore, when he commenced to climb down the rock face, left his place of employment."

The appellant's submission

Miss Schokman's argument in support of the appeal was simple.  She submitted that having found that the top of the quarry was part of the place of employment, the quickest route down from that part of the place of employment to the part where the cages were being unloaded, must, as a matter of logic, also be the place the place of employment.  She conceded that it might have been a hazardous route to take.  She conceded that it might have been a foolish way for her client to return to his assigned labour, but nonetheless contended, as a matter of logic, that once the finding had been made that the top of the quarry was part of the workplace, the only finding reasonably open was that any reasonably direct route from there to the place where the cages were being unloaded, must also be part of the workplace.

The place of employment

The Act does not define the place of employment.  The first step is to consider the scope and nature of the appellant's employment.  Relevantly, it was to go with two other employees to the quarry floor and there unload the wire cages.  The appellant's employment included "whatever [was] incidental to the performance of the work" and what he was "reasonably required, expected or authorised to do in order to carry out his duties", per Dixon J (as he then was) in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at 294. As Barwick CJ said in Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 536:

"Thus it may include being at a place at which the workman's presence is so consequential on or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance of his employment." 

Obviously, "going to the toilet" was incidental or ancillary to the appellant's employment and so was his return therefrom.  The learned Commissioner referred to the following passage from Wilkinson v Forestry Commission 47/1986 at 8:

"Whether a place is a place of employment and whether a worker's attendance at a place can be regarded as being pursuant to his contract of employment will depend upon what the worker was obliged to do under that contract and whether his presence in that place was incidental to his performance of his contractual obligations."

Although Wilkinson concerned the provisions of the Worker's Compensation Act 1927, s3A(a), for the purposes of this appeal that provision is indistinguishable from the Act, s25(5) which provides:

"(5)  Without limiting subsection (1), but subject to subsections (1A) and (2), an injury arises out of and in the course of a worker's employment if the injury occurs during attendance at the worker's place of employment on a working day."

In Van Oosterom v Australian Metropolitan Life Assurance Co Ltd [1960] VR 507, the Full Court of the Supreme Court of Victoria considered the provisions of a section that is for present purposes indistinguishable from the Act, s25(5). "Place of employment" in that subsection must be defined by reference to spatial limits. Where those spatial limits are not fixed by permanently defined geographical boundaries, determination of whether any place is part of the place of employment will depend on whether the employee was at that place pursuant to his employment. See Van Oosterom at 511. Thus, any given place may be part of the place of employment at one time and not at another time. Van Oosterom was followed in Clissold v Country Roads Board [1981] VR 259. Young J applied Van Oosterom and said, at 268, that it is only that part of any place that is used for the purpose of the employment that is a place of employment. See also Carbis v Bounceball Pty Ltd [1972] VR 211. An employee is acting in pursuance of his employment if he is doing something in accordance with the terms of his contract of employment or doing something that is consequential on, or incidental, or ancillary to it. It follows that in returning by the most direct route to the spot where the cages were being unloaded, the appellant was acting in pursuance of his employment. There is error of law in the following passage of the learned Commissioner's reasons for judgment:

"There was no reason arising from or incidental to his employment to require him to be on that rock face.  He had therefore, when he commenced to climb down the rock face, left his place of employment."

Firstly, the appropriate test is not whether the appellant was required to be on the rock face.  It is whether the appellant's presence on the rock face was in pursuance of his contract of employment or anything that was incidental to it.  Secondly, there was a reason for him being there viz, to return from the toilet to resume unloading the wire cages. 

Does it matter that the route down the face of the quarry was dangerous? During the course of his submissions, I asked Mr Hallett, counsel for the respondents, if he would contend that the rock face was not part of the place of employment had there been steps cut in its face which would have enabled the plaintiff to safely negotiate his way from the toilet to the unloading spot. Mr Hallett conceded that had this been the case, he would not so contend. Once the learned Commissioner found that the top of the quarry was part of the place of employment, it seems to me, that the fact that the most direct route from one part of the place of employment to another part was dangerous is beside the point, unless perhaps its traverse constituted serious and wilful misconduct as provided by the Act, s25(2a). However, this issue was not raised in the Tribunal nor on the appeal. Had the appellant returned from the top of the quarry by some long, circuitous and roundabout route through the bush, it might well be said that in so doing, although he was taking a safer course, he was not acting in pursuance of his contract of employment, nor anything incidental to it, but in pursuance of some reason of his own.

Conclusion

The appeal succeeds.  The order of the Tribunal dismissing the appellant's claim for compensation is quashed.  I will hear counsel with respect to consequential orders.