SHIRALEE MARGARET ARCHER and COMCARE

[2006] AATA 288

Administrative

Appeals

Tribunal

 

DECISION AND RESONS FOR DECISION [2006] AATA 288

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No N2005/628

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHIRALEE MARGARET ARCHER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen

Date30 March 2006

PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes its decision, namely that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 upon the death of Ronald David Archer, deceased.

(Sgd)  M D Allen

..............................................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Applicant’s husband died from shotgun blast whilst on a journey from work to his home – whether journey was interrupted in a way that substantially increased risk of injury – the meaning of “substantial” – argument by the Respondent that the confrontation took the deceased out of the scope of employment rejected – decision under review set aside and substituted with Tribunal’s own decision that the Applicant is entitled to compensation upon the death of her husband.

Safety, Rehabilitation and Compensation Act 1988 ss 6(1)(b), 6(2), 17, 18

Commissioner for Superannuation v Scott (1987) 12 ALD 38

Vetter v Lake Macquarie City Council (2001) 202 CLR 439

Old Spaghetti Factory v Oughtred [1975] WCR (NSW) 231

Lawton v Star City PtyLtd (2002) 24 NSWCCR 260 distinguished

Maunder v Commonwealth (1983) 51 ALR 44

REASONS FOR DECISION

Senior Member M D Allen

1.      The Applicant is the widow of Ronald David Archer, deceased, a former employee of the Australian Quarantine and Inspection Service who died from a shotgun blast to his groin on 11 February 2003.

2.      The fatal injury was inflicted by one Edward van Oosterum, the husband of a fellow employee at the Mudgee Abattoir with whom the deceased was romantically involved.  Van Oosterum is currently serving a sentence of imprisonment for the manslaughter of the deceased.

3.      The Applicant’s claim is that at the time the deceased was fatally injured he was on a journey from his place of employment, namely the Mudgee Abattoir to his residence.

4. Paragraph 6(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) provides that an injury to an employee shall be treated as having arisen out of, or in the course of his employment, if sustained while the employee was travelling between his place of work and his residence.

5. Subsection 6(2) of the Act places a limitation upon s 6(1)(b) by stating that that paragraph does not apply where the travel:

(a)was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or

(b)was interrupted in a way that substantially increased the risk of sustaining an injury.

6. The Respondent in these proceedings did not seek to argue that s 6(2)(a) was applicable and on the evidence before me that approach is entirely correct.

7. As to the interpretation to be given to s 6(2)(b) of the Act there appears to be no decisions of the Federal Court directly on point. Repatriation Commission v Smith (1997) 75 FCR 298 was a decision on an analogous section of the Veterans’ Entitlements Act 1986 but the appeal to the Federal Court from the Tribunal concerned the non-discussion by the Tribunal of evidence led by the Repatriation Commission seeking to show an increase of risk.  Similarly, Maunder v Commonwealth (1983) 51 ALR 44 concerned a different question, namely was the deceased still within his employment and if not, was there alternative means of transport available to him. There are however numerous decisions arising out of the New South Wales Workers’ Compensation jurisdiction but most of those cases turn on their own facts.

8. Paragraph 6(2)(b) of the Act refers to a “substantial” increase in the risk of injury.  As was pointed out in Commissioner for Superannuation v Scott (1987) 12 ALD 38 quoting Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union & Ors (1980) 27 ALR 367 at 382:

“The word substantial is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision.”

The majority (Fisher and Spender JJ) then adopted the remarks of Ambrose J in Re Bonny [1986] 2 Qd R 80 that substantial meant real or of substance and not insubstantial or nominal. They added that the phrase “wholly or substantially dependent” meant that the person was “primarily essentially or in the main, dependent”.

9.      In Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 452, the majority (Gleeson CJ, Gummow and Callinan JJ) said of the then ss 10(2) of the Workers’ Compensation Act 1987 (NSW) that referred to a “material” increase in the risk of injury by an interruption to or deviation from the journey:

“There is no obligation upon a worker to take the shortest and most direct route from the worker’s place of work to the worker’s abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker’s residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption. That is what the Act requires. Any question whether that requirement has been satisfied is not to be answered by posing and answering a different question altogether and of the kind posed by the Court of Appeal, was the appellant engaged in one or more journeys.”

10.     At p 471 Kirby J said:

“The extent to which s 10 of the Compensation Act and its predecessors have been interpreted to provide cover to a worker on a journey, although that journey involves significant interruptions and deviations, can be seen in the earlier decision in the Court of Appeal in Old Spaghetti Factory v Oughtred [1975] WCR (NSW) 231 … In that case, an interruption of almost two hours, after midnight, which took the worker in a direction opposite to his home and involved his staying for most of that time with a co-employee at a place of entertainment before delivering her home, was held by the primary judge to be a journey of the statutory kind.  Unanimously, the Court of Appeal found that this involved no error of law.  … The issues presented concerning the journey in that case and in the present case were equally issues of fact and degree.  They tendered, as such, no point of law.”

11.     The New South Wales Court of Appeal in Oughtred (supra) approved the statement of law by the trial judge. With respect I believe it to be equally applicable to ss 6(2) of the SRC Act, namely:

“What has to be measured against the risks of the journey that would have been made, if there had been no diversion or interruption, are the risks of the journey that was actually made or proposed to be made and completed, not just the risk that actually eventuated on the particular journey when the injury was received.  The matter is to be looked at, as it were, beforehand from the point of view of the risks that the two respective journeys entailed.”

12.     Almost nothing is known of the deceased’s movements after he finished work until the time he was shot.

13. Document T3 of the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, is a compilation document prepared by someone after the fatality.  I believe it to be a safe assumption that the document was prepared from original documents held by the Australian Quarantine and Inspection Service or Mudgee Abattoir.  This document shows that on 11 February 2003 the deceased finished work at 1500 hours.  I accept the evidence of the Applicant that it would normally take the deceased some 20 minutes to leave his place of work on the floor of the Abattoir and shower and change prior to commencing his journey home.  On the day in question, the Applicant was expecting the deceased to arrive home at “a bit after 4”.

14.     I also accept the Applicant’s evidence that the deceased had not returned home after ceasing work.

15.     During the course of his evidence upon his plea in mitigation after entering a plea of guilty to manslaughter, van Oosterum said that after finishing work at 2:30 pm he went to the post office and then to buy some hay which was loaded onto the back of his truck.  He then went to a caravan park where his wife was residing and saw the deceased driving out of the caravan park.

16.     Mrs van Oosterum in a statement to police said she remained at the Mudgee Abattoir that day until about 4:30 pm.

17.     After seeing the deceased drive out of the caravan park, van Oosterum followed him through Mudgee township until, at a point in Horatio Street (which was on the deceased’s direct route home), the deceased suddenly pulled to the side of the road.  His assailant also pulled up behind him.  Both men got out of their vehicles and an altercation developed during which van Oosterum produced a shotgun.  It was during the course of this altercation that the deceased was shot.

18.     The exact time of the shooting is not known, however Mudgee police noted a report of the shooting at 1624 hours.  Evidence from the subpoenaed police statements is that police were telephoned almost immediately; bystanders became aware that the deceased had been shot.

19.     Although the deceased was observed driving out of the caravan park where Mrs van Oosterum was then residing, that caravan park abuts the Gulgong Road which was the direct route from the abattoir towards the deceased’s residence.  I find there was no deviation from the deceased’s journey by calling in at the caravan park.

20.     What is unknown is how long the deceased remained at the caravan park and what else he had done to occupy his time between leaving work which could be said to be between 1520 hours and 1530 hours and the time when he was shot, namely at or about 1624 hours.

21.     There is no question to my mind that at the time he was shot and indeed from the time he left his place of work, the deceased was on a direct route to his residence.

22.     At the time he stopped his vehicle in Horatio Street Mudgee, the deceased was alongside a block of land upon which his daughter had positioned her motor vehicle with a “for sale” notice upon it.  The Applicant’s evidence was that this was a site which people used for the purpose of displaying motor vehicles for sale.

23.     To me it is entirely consistent with an otherwise uneventful journey to his residence that the deceased might stop his vehicle at the site where his daughter’s vehicle was displayed for sale and check that vehicle.

24.     There was a submission by the Respondent that the deceased stopped his vehicle in Horatio Street in order to confront van Oosterum who he had realised was following him.  Certainly there is evidence that the deceased had mentioned to the Applicant a previous occasion where van Oosterum had followed him and he and the Applicant had agreed that if it happened again that the deceased should pull over and tell van Oosterum to desist.  A witness made a statement to police in which he referred to both men exiting their respective vehicles and “waving their arms”.

25.     It is beyond a coincidence that of all the points along the journey to his residence where the deceased might have pulled to the side of the road in order to confront van Oosterum, he chose the site where his daughter’s motor vehicle was parked.

26.     To me the scenario is consistent with the deceased stopping to inspect his daughter’s motor vehicle and then becoming aware van Oosterum had pulled up behind him.

27. The Respondent submitted that by stopping and confronting van Oosterum the deceased had taken himself outside the scope of his employment. I disagree. The disqualifying conduct in relation to journey claims is to be found in ss 6(2) of the Act and cases dealing with assaults while at the workplace are not relevant.

28.     Likewise, Lawton v Star City Pty Ltd (2002) 24 NSWCCR 260 depends upon its own facts. In any event I am satisfied on the balance of probabilities that the deceased did not stop his vehicle in order to confront van Oosterum.

29.     Taking all the events of 11 February 2003 into account, while I acknowledge that there is a period of approximately one hour during which the activities of the deceased are unaccounted for, I am not persuaded that any interruption substantially increased the risks of his journey.

30.     A pathologist’s report states that no blood alcohol was detected in the deceased’s body and no other evidence exists stating that the Applicant had been observed at a hotel during the one hour period, so no allegation can be made that alcohol was a risk factor.

31.     Nothing else about the deceased’s journey evidences any potential risk caused by his delay in not going directly home.  The weather was fine and at 1620 hours in February, sunset would not have occurred.  No potential risk was suggested by the parties other than the submission by the Respondent of a deliberate confrontation with van Oosterum which I reject.

32.     I find that the interruption to the deceased’s journey from his place of employment to his place of residence did not substantially increase his risk of sustaining an injury.  The decision under review is therefore set aside and the Tribunal substitutes its decision that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 following the death of Ronald David Archer, deceased.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         E.Pope           .....................................................................................
  Associate

Date of Hearing  20 March 2006
Date of Decision  30 March 2006
Counsel for the Applicant         Mr S Hickey
Solicitor for the Applicant          Lyons Barnett Kennedy Solicitors
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent     Dibbs Abbott Stillman Lawyers