Singh v Securecorp - [2025] VMC 2

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE
WORKCOVER DIVISION

Case No. MAG-CI-240027219

GURMEET SINGH	Plaintiff
v
SECURECORP	Defendant

---

MAGISTRATE:	Magistrate M J Richards
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2024; Defendant’s submissions provided 16 December 2024; Plaintiff’s submissions provided 21 January 2025; Defendant’s reply submissions provided 23 January 2025.
DATE OF DECISION:	12 March 2025
CASE MAY BE CITED AS:	Singh v Securecorp
MEDIUM NEUTRAL CITATION:	[2025] VMC 2

---

WORKERS’ COMPENSATION - Rejected claim - Plaintiff driven to work by a co-worker - Co-worker parked in Yarra Park carpark in surrounds of MCG - Plaintiff was injured when he fell on way to sign on as a security guard at MCG - Whether injury arose out of or in the course of employment - Whether injury deemed to arise out of or in the course of employment - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Section 39(1) - Section 46(1)(b).

---

APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr S Pinkstone	Zaparas Lawyers
For the Defendant	Ms B McKenzie	Lander & Rogers

HIS HONOUR:

Introduction

Gurmeet Singh (the plaintiff) was employed as a security guard with Securecorp (the defendant) on a part-time basis. Depending on the number of shifts he was allocated, the plaintiff worked 10 to 20 hours per week.
On 28 May 2023, the plaintiff was rostered to work as a security guard at the Melbourne Cricket Ground (the MCG). The plaintiff was driven to work by a co-worker who parked his car in the Yarra Park carpark outside the MCG having entered through Gate 7. Whilst walking through the carpark to the MCG to commence work, the plaintiff slipped and injured his left leg.
The plaintiff completed a claim for compensation on 12 June 2023 (ADCB 5-7) alleging that he slipped and injured his left leg and knee in the MCG carpark near Gate 7 on 28 May 2023 at 11.00am. The plaintiff also alleged a psychological condition. The plaintiff stated that he was doing his required duties at the time.
On 13 July 2023, Allianz Australia Workers’ Compensation (Victoria) Limited (Allianz) rejected the claim for compensation (DCB 11-16).
Allianz referred to a circumstance investigation report from the Seca Group dated 9 July 2023 in the rejection notice and relied on the following information:
·the defendant advised that the plaintiff had stated that on 28 May 2023 ‘after getting out of the car, the plaintiff walked approximately 500 metres before falling with his left knee hitting the ground. The plaintiff stood up and continued to walk to the MCG to commence work’;
·the defendant advised that the plaintiff had not started his shift when the injury occurred.
Allianz referred to section 46(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act) and stated that travelling for the purposes of a worker’s employment does not include travelling to and from the worker’s place of employment.
Allianz considered that the plaintiff’s injury did not arise out of or in the course of his employment.
The plaintiff has issued these proceedings.
Mr Pinkstone of Counsel appeared for the plaintiff. Mr B McKenzie of Counsel appeared for the defendant.
The proceeding was heard on 10 December 2024. The plaintiff gave evidence. Mr Anthony Saitta, the Security Event Manager for the defendant, also gave evidence. The Amended Plaintiff’s Court Book (APCB) dated 9 December 2024 was tendered (Exhibit 1). The Amended Defendant’s Court Book (ADCB) was tendered (Exhibit A). A diagram headed ‘Parking - Yarra Park’ was tendered (Exhibit B).
Counsel were in agreement that:
- the plaintiff had sustained an injury to his left knee on 28 May 2024 as a result of slipping in the Yarra Park carpark of the MCG; and
- as a result, the plaintiff had been incapacitated for employment from 30 May 2023 to 12 November 2023.
The issue to be determined by the Court was whether the injury had occurred in compensable circumstances.
The Plaintiff’s case:
Evidence-in-chief of the Plaintiff:
The plaintiff said he worked part-time as a security guard for the defendant. His primary job was working as a security guard for Wilson Security.
The plaintiff mainly worked at the MCG for the defendant but could work anywhere. The plaintiff said he had worked as a security guard at AFL, cricket, and soccer games.
The plaintiff said the defendant would send him an email 2 to 3 days before he worked asking if he was available for a shift as a security guard at the MCG. The plaintiff said he could accept or reject the offer of work.
The plaintiff said he would normally drive his car to the MCG or go with a friend, who was a co-worker, in his car.
On 28 May 2023, the plaintiff went to the MCG in the co-worker’s car. The co-worker parked his car in the MCG carpark near Gate 7. The plaintiff said he would drive from time to time. The plaintiff said the defendant told them to enter the carpark through Gate 7.
The plaintiff was referred to an email sent by Mauro Crea, the Major Events Manager of the defendant, to its employees dated 21 September (year unknown). The email was headed ‘Re: Week 3 Finals Match Info – Collingwood v GWS’ concerning parking at the MCG. The email stated:
Hello all,
Please find info regarding tomorrow’s event.
Regarding parking: it will be through the following Gate at a cost of $10 (card only) and you may be asked to show your security licence and/or text confirmation of shift to gain entry as it is closed to public.
·Gate 7: Closed
·Gate 3: Closed
·Gate 5: 06:00
·Gate 6: Closed
(Disregard this email if you are not working)
(APCB 65)
The plaintiff said this was an email he had received from the defendant and that he would have received it the night before his shift. The plaintiff said he understood from the email that Gate 5 was open to the MCG carpark.
The plaintiff was referred to an email sent by Mauro Crea to the employees of the defendant dated 13 May 2023. The email was headed ‘Round 9 Match info - Coll v GWS’ concerning parking at the MCG. The email stated:
Hello all,
Please find info regarding tomorrow’s event.
·Note: Additional Venue Information added to the Employees info doc.
·Also note that the pre-parking for Yarra Park is not happening anymore with payment at the Gate as per usual.
The opening times of the following Gates are listed below at a cost of $10 (card only).
·Gate 7: 10:30
·Gate 3: 13:30
·Gate 6: closed
·Gate 5: 14:00
(Disregard this email if you are not working)
(APCB 66)
The plaintiff said he received the email, and it was telling him where to park at the MCG. If the shift was to start at 11.30am, the email said that Gate 7 was open at 10.30am. similarly, If the shift was to start at 2.30pm, the email said that Gate 3 was open at 1.30pm.
The plaintiff could not remember if he worked at the MCG on 13 May 2023.
The plaintiff was referred to an email sent by Mauro Crea to the employees of the defendant dated 25 December 2023. The email was headed ‘BDT Match Info - Day 1’ concerning parking at the MCG. The email stated:
Hello all,
Please find info regarding tomorrow’s event.
Regarding parking: it will be through the following Gate at a cost of $10 (card only) and you may be asked to show your security licence and/or text confirmation of shift to gain entry as it is closed to public.
·Gate 7: 05:30
·Gate 3: 07:30
·Gate 5: 08:00
(APCB 67)
The plaintiff could not remember receiving the email.
The plaintiff said he received a similar email to those he had been referred to above prior to going to work on 28 May 2023.
The plaintiff was referred to an email sent by Mauro Crea to the employees of the defendant dated 27 May 2023. The email referred to ‘Round 11 Match Info - Richmond v Port Adelaide (Yartqpuulti)’ to be played on Sunday, 28 May 2023. The email had a number of attachments and stated:
Hello all,
Please find info regarding tomorrow’s event.
·Note: Additional Venue Information added to the Employees info doc.
·Note: Beanies are only given to guards working in the following positions:
·External of the Venue 9staff entry, Bus Turning, Entrance A, Entrance E)
·Permanent Gate including Gate Leaders
·Arena/Interchange
The opening times of the following Gates are listed below at a cost of $10 (card only).
·Gate 7: 07:00
·Gate 3: 10:00
·Gate 6: closed
·Gate 5: 10:30
(Disregard this email if you are not working)
(ADCB 39)
The plaintiff said he received the email.
The plaintiff said he was working at the player’s change room in the MCG stadium on 28 May 2023 and started work at 11:30am. The plaintiff said his friend paid $10 and had entered Gate 7 to park in the MCG carpark. The plaintiff said Gate 3 was closed at the time they parked.
The plaintiff said he could have caught a train to the MCG on 28 May 2023. However, the plaintiff said it was easier to go to the MCG by car.
The plaintiff was shown a diagram headed “Parking - Yarra Park’ (Exhibit B - ADCB 19). The diagram was a map of the area around the MCG. The plaintiff indicated that his co-worker had entered the carpark at Gate 7 which was situated on Brunton Avenue. His co-worker parked the car in the carpark and the plaintiff was walking towards the MCG when he fell.
The plaintiff was referred to an index under the heading “Employee Info 2023 - V4” (DCB 18). The index table included the following:
·Parking - Yarra Park;
·Sign On Location;
·Sign On Procedures;
·Securecorp Uniform;
·Customer Service - CARE;
·Prohibited Items;
·Emergency Evac Codes;
·Cloak Room;
·Lost Property;
·Prayer room;
·First Aid Rooms;
·Parents Rooms;
·Contact Info.
The plaintiff said this information had been emailed to him by the defendant when he commenced employment.
The plaintiff said there were four steps to complete before commencing his shift;
·Step 1 - The plaintiff had to go to the ‘Sign On Location’ which was the ‘Sign On Window’ at Gate 1A (ADCB 21). The plaintiff would sign on and then wait for his staff entry ticket to be sent to his mobile phone (ADCB 22);
·Step 2 - The plaintiff would then use the staff entry and go the Muster Room (ADCB 21) where he would have his security licence scanned, and photo taken (ADCB 23);
·Step 3 - The plaintiff would then go to the Control Room which had the staff uniforms and radios to be collected (ADCB 23-24);
·Step 4 - The plaintiff would then complete the Crowd Control Register and obtain his Crowd Control Number. The plaintiff would then go to where he was to work.
The plaintiff said he completed the four steps every time he worked as a security guard at the MCG. On 28 May 2023, the plaintiff said he started work at 11.30am and had to complete the four steps before 11:30am. The plaintiff said he would have got to the MCG about 11:00am to 11:15am on 28 May 2023.
The plaintiff said he fell in the carpark as he was walking to the “Sign On Window” at Gate 1A to sign on. Gate 1A was near Gate 1. The plaintiff said he was walking through the carpark towards the stairs leading to Gate 7 of the MCG. The plaintiff said this was the only way to get to Gate 1A. As he was walking, he plaintiff’s left leg slipped, and he fell to the ground. The plaintiff said his co-worker helped him. He then completed the four steps to sign on and commenced his shift. The plaintiff said he got medical treatment inside the ground.
On 28 May 2023, the plaintiff said he was working as a security guard outside the player’s change room. The plaintiff said he worked there most of the time. He was sometimes sent to a different area.
The plaintiff initially said he always went by car to the MCG. The plaintiff then said he may have caught a train or tram to the MCG if he had been working for Wilson Security in the city. The plaintiff said he was working in Elizabeth Street for Wilson Security a couple of times a month but had no idea how many times he would have gone to the MCG by train or tram.
The plaintiff said he was living at Manor Lakes at the time. The plaintiff said he might have been working 2 days a fortnight for the defendant leading up to his injury. The plaintiff said it would take about 45 minutes to drive to the MCG by car from Manor Lakes. The plaintiff said he would normally enter the carpark at the MCG through Gates 3, 5, 6 and 7 because of the emails sent to him by the defendant about parking at the MCG.
Cross-examination of the Plaintiff:
The plaintiff said he and his co-worker would take turns to drive to the MCG.
The plaintiff said his co-worker picked him up from the Williams Landing train station on 28 May 2023.
The plaintiff was referred to the email of the defendant dated 21 September sent to their employees working at the MCG at the Collingwood v GWS football game the next day (APCB 65). The plaintiff agreed the email stated carparking would be through Gate 5 which would be open at 06:00 and that Gates 3, 6 and 7 were otherwise closed.
It was put to the plaintiff that the information concerning parking had been initially sent to the defendant by the MCG and that the defendant had then sent the information to its employees. The plaintiff said he did not know.
The plaintiff was referred to the email of the defendant dated 25 December 2023 sent to employees working at the Boxing Day cricket test the next day (APCB 67). The plaintiff agreed the email stated carparking would be through Gate 3 which would be open at 07:30, Gate 5 would be open at 08:00 and Gate 7 would be open at 05:30. It was put to the plaintiff that the defendant was telling the employees about the carpark and what gates would be open the following day.
The plaintiff was referred to the email of the defendant dated 27 May 2023 sent to employees working at the Richmond v Port Adelaide football game the next day (ADCB 39). The plaintiff agreed the email stated carparking would be through Gate 7 which would be open at 07:00, Gate 3 would be open at 10:00 and Gate 5 would be open at 10:30. Gate 6 was closed.
The plaintiff agreed he started work at 11.30am on 28 May 2023 and that the email said Gates 7, 3 and 5 would be open to enter the carpark by then.
The plaintiff was referred to the diagram headed “Parking - Yarra Park” (ADCB 19). The plaintiff agreed that he would have to pay $10.00 by credit card to enter the carpark. The plaintiff agreed that, if he had entered the carpark through Gate 3, the MCG event staff would then have directed him where to park in that area. The plaintiff said the MCG event staff would always tell people where to park and that people would follow their directions. The plaintiff agreed that he would also have been told where to park if he had entered the carpark through Gate 5 or Gate 7.
The plaintiff agreed that his co-worker was driving when he entered the carpark on 28 May 2023. The plaintiff was asked whether he had discussed with his co-worker which gate they should use to enter the carpark. The plaintiff said his co-worker had received the same email he had received the day before and that his co-worker knew Gates 7, 3 and 5 were open.
The plaintiff agreed the security guards employed by the defendant could enter the carpark through Gates 7, 3 or 5.
The plaintiff agreed the public could also enter the carpark through Gates 7, 3 or 5.
The plaintiff was asked whether his co-worker could have entered the carpark through Gates 3 or 5 on 28 May 2023. The plaintiff said he could not remember.
The plaintiff said, after his co-worker parked his car on 28 May 2023, he got out of the car and was walking towards the MCG and fell on the grass. The plaintiff could not remember how far he had walked before the fall but thought he might have walked approximately ten metres. The plaintiff said he was going to sign on at Gate 1A before the fall. The plaintiff said Gate 1A was on the other side of the MCG.
The plaintiff was shown the diagram headed “Sign On Location” which depicted a red arrow indicating the “Sign On Window” at Gate 1A (ADCB 20). The plaintiff said he was heading towards the stairs at Gate 7 of the MCG and was going to walk up the stairs and walk around the MCG to Gate 1A. The plaintiff said the stairs were not shown on the diagram.
It was put to the plaintiff that he could have stayed at ground level and walked in a clockwise direction towards Gate 1A. The plaintiff disagreed and said everyone would been walking at ground level towards him. It was put to the plaintiff that he could have walked in an anticlockwise direction around the MCG towards Gate 1A. The plaintiff said this have involved walking for longer and walking up a ramp.
The plaintiff said he could not remember receiving any additional venue information from Mr Crea. It was put to the plaintiff that Mr Crea had attached a pdf document headed “Employee Info 2023 V4.pdf” to the email dated 27 May 2023 regarding the Richmond v Port Adelaide (Yartapuulti) football game on 28 May 2023 (ADCB 39).
It was put to the plaintiff that evidence would be given that the email dated 27 May 2023 attached the additional venue information (ADCB 18-38). The plaintiff said he could not recall.
The plaintiff said he understood the signing on process for work with the defendant.
The plaintiff said when he signed on at Gate 1A, he would wait for a staff entry ticket to be sent to his phone scan, and he would then be sent a code (ADCB 22). The plaintiff would then enter the Muster Room (ADCB 21) where he would present his security licence and have his photo taken and then go to the Control Room (ADCB 23). The plaintiff would collect his uniform and then complete the Crowd Control Register and get his Crowd Control Number (ADCB 25).
The plaintiff said he would get a yellow polo shirt and jacket to wear which he would return at the end of the shift (ADCB 26).
The plaintiff was asked whether he finished work at 5:30pm on 28 May 2023. The plaintiff said he could not remember.
The plaintiff was asked whether he spoke to Mel Brown, the Human Resource Manager of the defendant on 19 June 2023. The plaintiff said he could not remember.
The plaintiff was referred to the following email:
From: Meet…[email protected]
Sent: Monday, June 19, 2023 11:21 AM
To: Mel Brown [email protected]
Subject: Fw: Gurmeer SINGH
Hi Mel
Thanks for your email.
Regarding about calling…
I haven’t received anyone call except you.
You call me on Friday.
Before I haven’t received any call.
Also I emailed to HR department 3 time about my incident.
About no reply anything.
And incident report on site as well same day 28/5/23 at MCG, they suggest me submitting you incident online.
I fill incident report.
PLEASE CHECK ATTACHED PICTURES.
And first aid team also check me and they tell me if you have pain, check with gp.
When I called to Anthony, he said already tell him so someone call me form HR
SEE CHECK ATTACHED ALL EMAILS AND PICTURES
(ADCB 56-57)
The plaintiff said he did not remember the email but might have sent it.
It was again put to the plaintiff that he had spoken to Ms Brown about the incident on 28 May 2023. The plaintiff agreed.
The plaintiff said he could not remember receiving an email from Ms Brown but said she must have sent him something.
The plaintiff was referred to the following email and the first two dot points which stated:
On Mon, 19 June 2023 at 4:26 pm, Mel Brown – [email protected] wrote:
Hi Gurmeet,
Thank you for returning my call earlier. It was nice to speak with you.
Just to recap our conversation;
·You informed me that you sustained an injury 28 May 2023 after travelling with your friend to the MCG. At about 11:00am, you parked in the Gate 7 parking whish is a common parking area used by staff and spectators.
·After getting out of the car, you walked approximately 500 metres before falling with your left knee hitting the ground. You immediately stood up and continued to walk to the MCG to commence work and did not any pain initially.
·……

(ADCB 56-57)

The plaintiff denied telling Ms Brown that Gate 7 was a common parking ground area used by staff and spectators.
The plaintiff said he did not know how many metres he had walked from the car before he fell.
The plaintiff was referred to the following email:
From: Meet…[email protected]
Sent: Monday, June 19, 2023 5:42 PM
To Mel Brown [email protected]
Cc: Anthony Saitta [email protected]
Subject: RE: Gurmeet SINGH - 19/6/2023
Thanks Mel
Only few things need to correct please
1. After carpark the walking distance between 100m - 200m
……

(ADCB 55-56)

It was put to the plaintiff that he had sent the email to Ms Brown and Mr Saitta in response to the earlier email from Ms Brown to correct some of the details in Ms Brown’s email. The plaintiff agreed that he must have sent the email to Ms Brown. The plaintiff said he did not remember how many metres he had walked before falling.
It was put to the plaintiff that his earlier evidence to the Court was that he had walked about ten metres before falling. The plaintiff said he did not know how many metres he walked before falling.
It was put to the plaintiff that the $10.00 parking fee that he and his co-worker had paid to enter the MCG carpark was the same parking fee that members of the public would pay to enter the MCG carpark. The plaintiff said he did not know how much members of the public paid to enter the MCG carpark.
The plaintiff agreed that when he worked at the MCG, he would put on his security uniform on at the MCG and leave his security uniform at the MCG when he finished work. The plaintiff agreed that he did not take any equipment or paperwork from home to the MCG. The plaintiff said he did not do any work at home.
The plaintiff agreed that he was working at Docklands for Wilsons Security, another employer, during the period up to 28 May 2023. The plaintiff was not sure when he started work at Docklands. The plaintiff said he was working in Elizabeth Street in the city before Docklands.
When working in Elizabeth Street, the plaintiff said he would get a V-Line train from Wyndham Vale to the Southern Cross Station.
If working at Docklands, the plaintiff said he would then catch a tram to the MCG if he was working at the MCG. The plaintiff said he would catch public transport to get home.
The plaintiff said it was more convenient to drive and park at the MCG instead of catching a train and tram.
The plaintiff said it was his choice to drive and park at the MCG and agreed that the defendant left it to him as to how would get to work.
It was put to the plaintiff that the defendant did not care how he got to the MCG. The plaintiff said he thought the choice was to drive to the MCG because he had the option of using the carpark.
The plaintiff said the defendant would email their employees about the choice of the carpark.
The plaintiff was referred to the email from Mr Crea dated 27 May 2023 (ADCB 39). It was put to the plaintiff that the email said nothing about driving to the carpark at the MCG and any requirement about the defendant’s employees having to drive to the MCG and park in the carpark.
The plaintiff was referred to the match day information concerning the Richmond v Port Adelaide game on 28 May 2023 (ADCB 48-49). It was put to the plaintiff that he would have received the match day information by email from the defendant. The plaintiff said he could not remember if he received the match day information.
It was put to the plaintiff that the match day information (ADCB 48-49) was sent as an attachment to the email from Mr Crea dated 27 May 2023 to the defendant’s employees (ADCB 39)
The plaintiff said he only received the email and did not remember receiving the attachment. The plaintiff said he just saw the email.
The Defendant’s case:
Evidence-in-chief of Mr Anthony Saitta:
Mr Saitta said he was employed by the defendant as the Security Event Manager at the MCG.
Mr Saitta was referred to the email from Mr Crea dated 27 May 2023 (ADCB 39). Mr Saitta said the email included the employee information described as:
Employee Info 2023 V4.pdf
(ADCB 18-38)
Mr Saitta said the employee information was sent to all employees as an attachment to the email. The information was sent so that the employees would understand what was involved in working at the MCG.
Mr Saitta said the match day information concerning the Richmond v Port Adelaide game at the MCG on 28 May 2023 (ADCB 48-49) was sent to the defendant by the MCC. The defendant had then attached it to the email sent by Mr Crea to the defendant’s employees.
Mr Saitta said all contractors working at the MCG would have information sent to them by the MCC. The information used to be forwarded physically but all information was now sent as an attachment to an email.
Mr Saitta was asked whether the defendant’s employees were sent information about getting to the MCG. Mr Saitta said the information was specifically related to the venue on the day, such as what was open. The plaintiff was sent information about what was happening on the day so that they could access the information on their shift and tell patrons attending the game.
Mr Saitta said the email sent by Mr Crea on 27 May 2023 (ADCB 39) had the attached information and advised the employees about the gates to the carpark at Yarra Park and what time they would open. Mr Saitta said the information about the opening times had been provided to the defendant by the MCC and the defendant had passed that information on to their employees. The employees had the choice to pay the entry fee of $10.00 and use the carpark if they wanted to drive to work.
Mr Saitta said, whilst the defendant provided the information about parking to their employees, the defendant encouraged their employees to use public transport. However, the employees had the choice to drive if they wanted to.
Mr Saitta said the defendant would get a monthly schedule concerning the Yarra Park carpark, but the schedule could change depending on conditions and the size of the event. Mr Saitta said it was up to the MCC as to how they managed the Yarra Park carpark. The MCC decided which gates would be open and which gates would be closed.
Mr Saitta was referred to the diagram headed ‘Parking-Yarra Park’ (ADBB 19). The diagram depicted various gates by which the carpark could be entered from the surrounding streets. Mr Saitta said Gate 7 was entered from Brunton Avenue. On 28 May 2023, the employees had been told that Gate 7 was open at 7:00, Gate 3 (entered from Wellington Parade) was open at 10:00, Gate 5 (entered from Punt Road) was open at 10:30 and Gate 6 (entered from Punt Road) was closed. Mr Saitta said that information was provided to the employees so that they knew that Gate 7 was open early if they wanted to use the carpark. If the employees used Gate 7, they would be directed by the MCC event staff and told where to park. Mr Saitta said the State Government owned Yarra Park and the defendant had no control over the carpark.
Mr Saitta said the defendant did not direct their employees to drive to the MCG and use the Yarra Park carpark. Mr Saitta said he did not know whether the plaintiff drove to the MCG.
It was put to Mr Saitta that the plaintiff had fallen after entering the carpark though Gate 7 and parking. Mr Saitta was asked what options were there to get to Gate 1A at the MCG from that area, Mr Saitta said the plaintiff could walk through the grass carpark towards Gates 6 and 7 at the MCG and walk up the stairs from the lower to the upper concourse and walk clockwise along the Brunton Avenue side. Alternatively, the plaintiff could walk in an anticlockwise direction on the concourse passing Gates 5, 4, 3 and 2 of the MCG.
Mr Saitta was referred to four photographs under the heading ‘Sign On Location’ (ADCB 20).
Mr Saitta said the ‘Securecorp Sign On Window Gate 1A’ and the staff entry to the ‘Securecorp Muster Room’ were depicted in the photographs (ADCB 21). Once an employee had presented at Gate 1A and had his staff entry ticket sent to his phone (Sign On Procedures - Step 1) (ADCB 22), he would enter the Muster Room for the sign on procedure.
In the Muster Room, the employee would have his licence scanned with the Sign on IDeye, have their photo taken and receive details about their shift (Sign On Procedure - Step 2) (ADCB 23). The employee would be briefed by the Team Leader or Supervisor. The employee would collect their uniform and other equipment which they would return at the end of their shift (Sign On Procedures - Step 3) (ADCB 24). The employee would then fill out the Crowd Control Register and collect a Crowd Control Number (Sign On Procedures - Step 4) (ADCB 25). The employee would then go to their position.
Cross-examination of Mr Saitta:
Mr Saitta agreed the defendant provided security services and had a contract to provide those services at the MCG.
Mr Saitta agreed the plaintiff was employed by the defendant as a security guard and that it was necessary for him to travel to the MCG to work as a security guard.
Mr Saitta agreed that each time the plaintiff, or any other employee worked at the MCG, they would have to go to Gate 1A to obtain a ticket to enter the venue before every shift.
Mr Saitta agreed that Gate 1A was a specific entry point for the defendant’s staff to enter before their shift commenced at the MCG.
Mr Saitta said the employee information (ADCB 18-38) was emailed to all the defendant’s employees before every game at the MCG regardless of whether the employee was working at the game or not.
Mr Saitta was asked whether the same information document was emailed every time. Mr Saitta said the same information was sent. The information assisted the defendant’s employees in getting to work and understanding what was happening at the MCG.
Mr Saitta agreed the plaintiff would have to travel through the precinct around the MCG to get to Gate 1A. Mr Saitta said there was no other way to get to Gate 1A.
It was put to Mr Saitta that the Gate 7 entrance to the Yarra Park carpark was normally used by the plaintiff and other employees on the day they worked. Mr Saitta said he could not say as it depended on where they had driven from.
Mr Saitta said Gate 7 was not necessarily used by the defendant’s staff and other gates would also be used by the staff.
Mr Saitta was referred to the email sent by Mr Crea dated 13 May 2023 to the defendant’s staff concerning the Collingwood v GWS game (APCB 66). It was put to Mr Saitta that the email was indicative of the emails sent to the defendant’s staff the day before a game concerning parking at Yarra Park. The email stated that Gate 7 was open at 10:30am. It was put to Mr Saitta that if staff were starting work at 11:30am, they would have to use Gate 7 to enter the carpark.
Mr Saitta said the plaintiff was a casual part-time employee who was offered work at the MCG. The defendant would check the availability of staff about a week before the game and roster on staff to work. All staff who had accepted a shift would receive an email the day before the game with attached information including information about carparking.
Mr Saitta said if there was a big event at the MCG there might not be access to the carparks. Mr Saitta said other options were then laid out in the email.
Mr Saitta did not agree that the majority of the defendant’s staff would travel to the MCG by car. Mr Saitta said a lot of the defendant’s staff did not have a car. Mr Saitta said there was also other parking around the MCG that could be used. Mr Saitta said he would often park in Wellington Parade in the street.
It was put to Mr Saitta that the defendant clearly authorised staff to use the carparks at the MCG. Mr Saitta disagreed and said the defendant simply gave the staff the option to park at the MCG. Mr denied that the staff were encouraged to use the carparks at the MCG. Mr Saitta agreed that the staff were provided with an email from the defendant before each game which included information about the carparks. Mr Saitta agreed that the defendant did not provide any other option about getting to work in the emails but said that the defendant did not tell staff about how to get to and from work.
Mr Saitta said the defendant encouraged staff to use public transport even though information about public transport was not included in the emails.
It was put to Mr Saitta that Gate 7 was the gate most often used by staff because it was close to Gate 1A. Mr Saitta said Gate 7 was the predominant gate used because it was open most of the time.
Re-examination of Mr Saitta:
Mr Saitta said staff could catch a train to Jolimont Station and walk along a path to the MCG without needing to walk through the grass area of the Yarra Park carpark.
Mr Saitta was shown the diagram of the MCG and the Yarra Park area headed ‘Parking - Yarra Park’ (ADCB 19). Mr Jolimont said Jolimont Station was next to Wellington Parade and was situated between Gate 2 and Gate 3. Richmond Station was next to Brunton Avenue to the right of Gate 7. Mr Saitta said people could walk to the MCG from the train stations and could also catch a tram to the MCG.
That was the extent of the viva voce evidence.
Non-Disputed Facts:
The plaintiff stated that much of the evidence of the plaintiff and Mr Saitta was not the subject of challenge or controversy. The plaintiff generally agreed with the following factual summary as set out by the defendant in their submission:
·the plaintiff commenced as a part-time security guard with the defendant on 21 October 2021. The plaintiff’s “main job” was with Wison Security, with whom he resumed work as a security guard in November 2023;
·the plaintiff’s hours of work with the defendant were determined on an as needed basis for events with start and finish times varied. The plaintiff’s availability for work would be checked by the defendant one or two weeks prior to the event. The plaintiff would indicate whether he was available for the job and accept the particular shift being offered;
·the plaintiff would start work at a time agreed beforehand. The plaintiff’s finishing time on a particular day would be determined by his supervisor;
·for at least all of 2023, including 28 May 2023, the plaintiff was employed at the MCG, located in Yarra Park, East Melbourne;
·once security guards, such as the plaintiff, arrived at the MCG, there was a detailed signing in procedure set out at steps 1 to 4 (ADCB 22-25) which formed part of the “Employee Info 2023 - V4 Information Pack” provided to the plaintiff. The signing in procedure involved going to MCG Gate 1A and then to the staff entry, both of which were shown on the “Sign On Location” diagram (ADCB 20). Once entering the staff entry, the plaintiff would travel to the muster room where he would put on the uniform supplied by the defendant, collect a crowd control card and sign in that crowd control card number in the Crowd Control Register;
·the plaintiff would go back to the muster room and leave his uniform and any equipment there after completing his shift;
·the plaintiff’s duties in 2023 prior to, and including 28 May 2023, were standing, or sitting outside the changing rooms and ensuring unauthorised persons did not enter the changing rooms;
·on 28 May 2023, the plaintiff was driven to work by a co-worker, who was also a security guard, who parked in the Yarra Park carpark;
·the plaintiff and the co-worker had driven in together on previous occasions. Sometimes the plaintiff drove his car and gave his co-worker a lift. On other occasions the co-worker would drive his car and give the plaintiff a lift. They both lived in the same general area of the Western suburbs;
·the $10 parking fee was determined by the MCC, which had its own MCC event staff running the parking at Yarra Park;
·the plaintiff or the co-worker, paid the parking fee, depending on who was driving;
·the $10 parking fee was the same for the public using the carpark;
·Yarra Park was owned by the Victorian Government and the MCC as a trust. The defendant did not own Yarra Park or the MCG;
·the email from the defendant to the plaintiff and other security guards dated 27 May 2023 (ADCB 39) stated that Gate 7 was open at 7:00am, Gate 3 was open at 10:00am and Gate 5 was open at 10:30am;
·the plaintiff and the co-worker had entered Yarra Park by other gates, such as Gates 3 or 5, from time to time;
·the entry to Gate 7 was from Brunton Avenue and the entry to Gates 3 and 6 was from Punt Road. Once the gates were entered, drivers were directed to specific areas within the Yarra Park carpark by MCC event staff. This could be anywhere within the carpark. The parking fee was paid to the MCC event staff on entry and was not reimbursed by the defendant;
·there were other examples of emails indicating gates that were open or closed (APCB 65-67). The information came from the MCC. The MCC decided which gates would be open or closed;
·Gate 7 was the gate typically used by staff of the defendant and other contractors and suppliers to the MCG. Gate 7 was also used by disabled staff or disabled members of the public;
·there was other public parking in the immediate vicinity of the MCG, including Wellington Parade which Mr Saitta had used. The plaintiff could also have parked in East Melbourne or the CBD.

Submission on behalf of the Defendant:

The defendant denied that the injury to the plaintiff’s left knee on 28 May 2023 was compensable under the WIRC Act. The incident was:
·not ‘in the course of employment’ within the meaning of s.39(1) of the WIRC Act: or
·deemed to be such within the meaning of s.46(1)(b) of the WIRC Act.
It was submitted that the injury might have been compensable under the ‘journey’ provisions of the Accident CompensationAct 1985. However, those provisions had been abolished by amendment as of 1 December 1992.
Further Facts set out by the Defendant based on the evidence:
The incident occurred at about 11:00am and the plaintiff was due to start work at 11:30am.
The plaintiff had driven from Williams Landing on the day of the incident and was dropped back there after the incident by his co-worker.
From where the plaintiff indicated he fell within the Yarra Park carpark, there were various options available to the plaintiff to go to Gate 1A of the MCG.
If travelling from the carpark within Yarra Park, it was necessary to cross grassed areas. If public transport was used, there was no need to traverse the grass of Yarra Park as there were pathways all the way around the MCG.
The plaintiff did not have to do any work for the defendant at home or take any equipment to or from home. There was no suggestion that the plaintiff was bringing any equipment with him when he was travelling to the MCG.
Public transport was available to and from the MCG as shown on the diagram headed “Parking – Yarra Park” (ACDB 19).
The plaintiff had used public transport (train) to get from his home in Manor Lakes to and from work with Wilson Security in either Elizabeth Street or Docklands.
A couple of times a month, the plaintiff also used public transport (tram) to get from either the city or Docklands, having worked for Wilson Security, and then gone to work at the MCG for the defendant. At the end of the shift at the MCG on such occasions, the plaintiff would then use public transport to get home.
The defendant took no interest in whether security guards such as the plaintiff drove to Yarra Park and parked there or used public transport. At times when there were going to be difficulties with parking in Yarra Park, the defendant would provide specific information in such emails (as the 27 May 2023 email), but these occasions were rare and it was always up to the staff to use public transport if they desired.
The defendant’s reason for providing the parking information to security guards, such as the plaintiff, was to help them get to work on time and understand what was going on in the “precinct” and specifics regarding the event, being a football match.

The plaintiff agreed that it was his choice and that it was more convenient to drive in with his co-worker to work at the MCG on this day, rather than to catch public transport.
The plaintiff’s co-worker was driving on this day, and the co-worker chose which gate to enter at Yarra Park when they arrived. The co-worker then parked where he was directed to park by the MCC event staff.
Legal Principles Regarding “In the Course of Employment”:
As the claim for compensation had been rejected, the plaintiff had the legal and evidentiary onus regarding the threshold issue of any original entitlement to compensation under the WIRC Act (Green v Victorian Workcover Authority [1997] 1 VR 364 at 372, 381 and 384).
The defendant referred to this Court’s decision in Kourtis v Wheelers Hill Primary School ([2020] VMC 10 (5 May 2020)) and the review of the cases at [165] to [176] and the following at [176]:
“The essential enquiry remains whether, at the time of the incident, there was the relevant nexus: “…between the relevant activity and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service.” [requoting Justice Kyrou in Reed Stockfeeds Pty Ltd v Lindhe [2008] VSC 304]
The defendant anticipated that the plaintiff may seek to rely on the following cases:
·Lukey v Mercy Public Hospitals [2012] VMC 18 (25 May 2012)
·VWA v Jones Lange Lasalle [2012] VSC 412 (Beach J)
·Nicolaides v Coles Supermarkets Australia Pty Ltd (unreported, County Court of Victoria, Misso J, 8 October 2013)
The defendant submitted that caution should be exercised in relation to trying to closely compare fact situations from one case to another (Lonie v Gryph Investments Pty Ltd (unreported), Magistrates’ Court of Victoria, Magistrate Wright, 15 June 2015 at [56]). The defendant submitted that there were significant factual differences between those cases and the present matter.
If there was to be any drawing of parallels, the defendant submitted that there were more significant similarities between the facts of this case and those in O’Dea v L’Oreal Australia Pty Ltd (unreported, Magistrates’ Court of Victoria, Magistrate Wright, 15 February 2012).
Application of the Law to the Facts of this Case:
The defendant submitted the incident occurred while the plaintiff was on his way to work for the defendant, in the sense of a “journey” (as that expression was understood prior to 1992 amendments). However, the defendant stated that the plaintiff was far from being “in the course of employment” in terms of both time and place. The Court was referred to the following:
·the 30-minute gap between the time of the incident (11:00am) and the time the plaintiff was to start work (11:30am);
·the significant distance (in excess of the length of the MCG) as shown by the plaintiff’s diagram (Exhibit B) between where the plaintiff parked and fell and where he was to commence the signing on process (stadium Gate 1A) and then enter the staff entry.
It was submitted that the defendant did not require or encourage the plaintiff to:
·drive or be a passenger in a vehicle driven by his co-worker and park at Yarra Park;
·enter Yarra Park from any particular gate (there being three gates identified in the email dated 27 May 2023, all of them open when the plaintiff arrived just before 11:00am;
·once within Yarra Park, follow a particular route to the point where he was to sign on, there being four such routes.
The defendant submitted that, on the evidence, there were various options available to the plaintiff to go to Gate 1A at the MCG from where he indicated he fell:
·he could have walked along Brunton Avenue in a clockwise direction around the MCG;
·he could have walked up the stairs at Gate 7 at the MCG and along the concourse in a clockwise direction to Gate 1A;
·he could have walked in a counterclockwise direction around the MCG to Gate 1A (although this was a longer distance).
The defendant also submitted that:
·there was no suggestion of any particular urgency for the plaintiff to be at work;
·there was no written or oral direction by the defendant for the plaintiff to drive and park at Yarra Park;
·the high point of the plaintiff’s case was to say that it was “implied” because the defendant was stating what gates were open and when they would be open at Yarra Park;
·despite this, the plaintiff had used public transport to get to and from work at the MCG on days when he had been working for Wilson Security and the plaintiff generally used public transport to get to and from work with Wilson Security;
·the plaintiff, or his co-worker, paid the MCC staff for the parking, without reimbursement from the defendant;
·the parking fee paid was the same fee as paid by the public;
·the plaintiff was in a carparking area that was available to disabled members of the public, staff of the defendant and other contractors and suppliers to the MCG;
·the plaintiff was free to choose how he got to work;
·having parked in Yarra Park, there were a number of options in terms of getting to his actual place of employment.
The defendant submitted that Lukey could be distinguished as it was not necessary for the plaintiff to traverse the grass area of Yarra Park if he had used public transport. Furthermore, the defendant did not own either Yarra Park or the MCG.
The defendant submitted that Nicolaidis could be distinguished as there was no designated carpark. The whole of Yarra Park was open to be used, subject to particular gates being open or closed at the direction of the MCC. The defendant had no control over Yarra Park.
The defendant submitted that Jones Lang Laselle could be distinguished on the basis that, in this case, the plaintiff was far from either the sign in window or the staff entry when he fell. The site of the plaintiff’s fall could not be likened to the ground floor foyer of the building in that case, where Ms Williams (the worker) was at the time of the incident, as it was not the only means of accessing the workplace.
The defendant submitted the present case was more akin to O’Dea and, referred to paragraphs [29] to [35] of Magistrate Wright’s decision.
In this case, the incident was not one which occurred “in the course of employment”.
Section 46(1)(b) of the WIRC Act:
Section 46(1)(b) of the WIRC Act states that an injury is deemed to arise out of or in the course of employment if the injury occurs:
“(b) while the worker is having regard to the nature of the worker’s employment or any specific task which may require the worker to travel, travelling for the purposes of the worker’s employment”.
The defendant referred to paragraphs [18] to [22] of O’Dea for a discussion of this provision.
On the evidence, the defendant submitted:
·the plaintiff was not required to travel for the purposes of employment;
·the plaintiff’s employment was solely as a security guard and, for many months, had worked as a security guard at the changing room of the MCG;
·the only indication of other work for the defendant was associated with Covid-19 in 2021;
·on the day of the incident, there was no suggestion that there was a specific task requiring the plaintiff to travel, other than getting to work.
It went without saying that the “journey” provisions had previously been abolished.
Submission on behalf of the Plaintiff:
Further facts set out by the Plaintiff based on the evidence:
The document headed “Employment Info 2023 - V4” (ADCB 18) and had the defendant’s letterhead. What followed was a table, the first item of which read “Parking - Yarra Park”.
The next document was headed “Parking - Yarra Park” and had the defendant’s letterhead (ADCB 19). Within the area of Yarra Park depicted on the document, the location of the entry points to Gate 3, Gate 4, Gate 5, Gate 6, and Gate 7 were indicated.
The next two documents were headed “Sign On Location” (ADCB 20-21). Both documents were on the defendant’s letterhead and depicted a diagram of the MCG and photographs of Gate 1A and the Muster Room.
The four steps of the “Sign On Procedures” were set out on four separate pages bearing the defendant’s letterhead (ADCB 22-25).
The email from the defendant dated 27 May 2023 was sent to the plaintiff the evening prior to the day he was injured (ADCB 39). The attachments to the email included the “Employee Info 2023 V4.pdf” documents.
The plaintiff gave evidence that he received an email from the defendant the night before each shift. The plaintiff said the purpose of the email was because of the carparking. The plaintiff said he and his co-worker parked in Gate 7 on the day of the incident because the defendant sent him the email.
The plaintiff said he was expected to arrive 15 minutes prior to the commencement of his shift. Mr Saitta agreed the plaintiff was required to complete a number of steps prior to the commencement of his shift at 11:30am. The Court should therefore infer that the plaintiff was required to be physically present at Gate 1A (the sign on location) by around 11:15am and that he was only injured a short time prior to that time.
Mr Saitta agreed the plaintiff had to travel to the MCG precinct for the purpose of providing security services to the client (MCG) of the defendant.
The nature of the plaintiff’s employment, and the specific tasks he was required to perform, required him to travel to the MCG precinct and through the surrounding grasslands (Yarra Park) to Gate 1A. Mr Saitta agreed the plaintiff was always required to sign on at Gate 1A and that there was no other way to get to Gate 1A other than through the MCG precinct.
Mr Saitta agreed that entering the carpark through Gate 7 necessitated the plaintiff walking over the Yarra Park grasslands towards Gate 1A.
Mr Saitta agreed that prior to each shift, the defendant sent the plaintiff an information pack which referred to parking in Yarra Park and provided specific information on parking at Yarra Park.
Mr Saitta agreed that prior to each shift, the defendant sent the plaintiff an email with information referring to parking in Yarra Park. No other carparking location or area or public transport information was mentioned.
Mr Saitta said the purpose of providing this information was to facilitate workers “arriving at work on time” and to assist with what to do “at the precinct”.
It was put to Mr Saitta that the defendant authorised parking and encouraged it. Mr Saitta did not agree with the word “encouraged” and instead said the documents sent to the plaintiff provided “an option” but that it was ultimately up to the individual employee as to how they got to work.
Mr Saitta agreed Gate 7 was most commonly used to enter the Yarra Park carpark as it was the closest to Gate 1A.
Application of the Law to the Facts of this Case:
The plaintiff referred to Henderson v The Commissioner of Railways (Western Australia) 58 CLR 281 and the passage from Dixon J at [294]:
“…To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. ... Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties.”
The plaintiff stated the ‘Henderson Principle’ required the incident to be “sufficiently incidental” to employment in the sense that the worker was doing something which he was reasonably required, expected, or authorised to do to carry out his duties.
The plaintiff submitted the plaintiff was either directed, instructed, or at least encouraged to use the Yarra Park carparking areas. The “Employee Info 2023 - V4 Information Pack” provided to the plaintiff dealt specifically with (car) parking and the use of Yarra Park. No other parking areas were referred to in those documents and there was no reference to the use of public transport. The documents were emailed to the plaintiff prior to each shift.
It was submitted that, even if the Court was to accept that the defendant was only advising of an “option” as suggested by Mr Saitta, it was odd that the defendant’s emails and information did not refer to other carparking options, other carparking locations, other modes of public transport or public transport routes.
With respect to the contention of the defendant that the plaintiff could have used more than one gate to enter Yarra Park, the plaintiff submitted that the defendant repeatedly sent information to its staff about the use of the Yarra Park carpark gates. Gate 7 was used more because it was the closest to the MCG Gate 1A. The emails at APCB 65-67 concerning which gates were open often depended on factors such as the game start time.
It was submitted that the Court should find that the plaintiff was doing something which he was required, expected, or authorised to do to carry out his duties, when injured. The plaintiff was required to travel to a particular area (Gate 1A) in a particular location (the MCG precinct) and was repeatedly provided documentary information on carparking at Yarra Park only. It was submitted that the evidence of Mr Saitta was that the defendant provided this information to facilitate workers getting to work on time. What the plaintiff was doing when injured was sufficiently incidental to his employment as a security guard at the MCG. The plaintiff’s use of Yarra Park to access Gate 1A into the MCG was an activity he was reasonably expected to do to carry out his duties, in terms of the 'Henderson Principle’.
The defendant has agreed that the plaintiff’s shift on 28 May 2023 commenced at 11:30am. Prior to that time the plaintiff was expected to arrive at the MCG precinct and travel to Gate 1A and complete steps 1 to 4 as set out in the defendant’s information pack. It was submitted that the Court should infer that the plaintiff was injured a short time prior to the commencement of his shift.
It was submitted that the absence of a lease by the defendant over the MCG precinct should not detract from the fact that the plaintiff, when injured, was traversing the grasslands of the precinct which, on the evidence of Mr Saitta, was something he had to do to access Gate 1A as required. The incident occurred while the plaintiff was using a permitted (if not expected or encouraged) means of access to a designated access point of the MCG and on a spot where the plaintiff happened to be by virtue of his employment, and not as a member of the public. It was further submitted that the defendant’s lack of ownership or control of the Yarra Park grasslands where the incident occurred was immaterial. The plaintiff was proceeding across the Yarra Park grasslands directly to Gate 1A which he had to do to access Gate 1A.
It was submitted that the plaintiff’s arguments essentially mirrored the reasoning employed by Beach J in Jones Lang Lasalle at [75].
It was submitted that the plaintiff’s case was supported by the facts and reasoning of Judge Misso in Nikolaidis. In that case, the plaintiff was injured after having completed his duties for the day. The plaintiff was traversing a loading bay on the way to his vehicle which had been parked in a section of the shopping centre carpark which was designated for employees of the shopping centre. Judge Misso referred to the facts and applied the reasoning of Beach J in Jones Lang Lassalle. It was submitted that the sufficiently incidental link found by Misso J was, in substance, that the plaintiff was traversing the loading bay by virtue of his employment to get to his vehicle in the shopping centre carpark.
It was submitted that the defendant’s assertion that the position in this case was analogous to Kourtis should be rejected. In Kourtis, the reasoning of the Court was based on the rejection of the plaintiff’s evidence as to the timing of the injury (at [196-204]) and the plaintiff’s reason as to why she was crossing the school grounds at the time she was injured (at [222-234]). It was submitted that the Court made a finding of fact that the plaintiff was engaged in the activity of going to collect her daughter from school when she suffered injury ([244]).
It was submitted that O’Dea could be distinguished, if need be, on the grounds that the plaintiff in that case was not sent emails prior to each shift which specifically set out carparking information at Yarra Park.
Adopting the comments of Kyrou J in Reed Stockfeeds Pty Ltd at [17], the plaintiff submitted that a slight nexus or even a very slight nexus may, in the circumstances, be sufficient to satisfy the sufficiently incidental Henderson Principle.
It was submitted that the present case sat comfortably with the reasoning of Magistrate Wright in Lukey. In that case, the plaintiff tripped outside of her workplace at the Mercy Hospital after she completed her shift. The area over which the plaintiff was walking when injured was a “shared area” under a licence agreement contemplated by a lease between the Austin Hospital and Mercy Hospital. The Mercy Hospital did not own or have control over the shared area save for a right under the licence agreement to use it to access the Hospital. Magistrate Wright found that the plaintiff was not on the (employer) Mercy Hospital premises when she was injured but was on the “shared area” which was the subject of the lease/licence agreement. Magistrate Wright held that “it was necessary for an employee, patient or visitor to use the “shared area”” to enter or leave one of the two doors to or from the Mercy Hospital. At [35] His Honour held:

“I find that crossing the shared area was an activity sufficiently connected with the employment…. There was simply no other alternative for her to access and egress the Mercy premises to and from the public street”.

At [36-37] Magistrate Wright went on to say:

“On the same basis, it was sufficiently “incidental” to her employment in that the use of the shaded area to access and egress the Mercy (by crossing the “shared area”) was an activity Mrs Lukey was “reasonably expected to do in order to carry out her actual duties” in terms of the Henderson principle. The fact that the activity involved what was not an actual task or activity as such does not exclude it from entitlement to benefits (see, Shane v Kelly’s Bakery (Magistrates Court, unreported, Garnett M, delivered 19 September 2011 and Park v Peach [1967] VR 558)”.

Whilst not the subject of direct evidence from the plaintiff or Mr Saitta, it was submitted that the Court should infer that the defendant had entered into a licence agreement or similar with the MCG (or possibly the MCC) in order for it to occupy and/or exert control over part of the stadium and/or forecourt (and patrons) and in order for its employees to be permitted to carry out security services throughout the MCG stadium and/or forecourt. It was submitted that the plaintiff had no other alternative than to cross the Yarra Park grasslands forming part of the MCG precinct to access Gate 1A which he was required to do in order to commence his shift. The plaintiff was therefore engaged in an activity he was reasonably expected to do to carry out his actual duties. This was analogous with the facts in Lukey. It was further submitted that the plaintiff was encouraged, even if tacitly, to use the Yarra Park carpark by the emails sent to the plaintiff by the defendant the night before each shift. It was submitted that Mr Saitta agreed the emails were sent to facilitate workers getting to work on time.

Even if the Court was not satisfied that the plaintiff was “directed” or “instructed” to use the carparking at Yarra Park, it was submitted that the plaintiff was clearly permitted or encouraged to do so and, when injured, and was engaged in an activity that he was reasonably expected to do to carry out his duties at the MCG. It was submitted that the plaintiff could only do this by traversing the precinct.
It was submitted that it was not the point that:
· the plaintiff was not directed to drive to the MCG and could have caught public transport; and

the defendant did not own or have control over either the MCG or Yarra Park;

given the decisions of Lukey and Nicolaides. Neither Mr Nicolaidis nor Mrs Lukey were provided with specific documentary information on company letterhead specifying where to park their vehicles.

In conclusion, the plaintiff submitted that the combination of factors referred to above supported a nexus (even if fairly described as light) between injury and employment sufficient to satisfy the “Henderson Principle” in the circumstances.

Alternative Argument:

Alternatively, the plaintiff submitted that he was injured at his actual workplace. It was put to Mr Saitta in cross-examination that the MCG did not have an address as such and was, in fact, a “precinct”. Mr Saitta was unable to give an address for the MCG and agreed it was a “precinct”. It was submitted to define the plaintiff’s workplace as only including the concrete stadium was an unduly restrictive definition. The Court could infer that the plaintiff had fallen and injured his leg outside of Gate 1A whilst endeavouring to sign on and that the injury had been at his workplace and in the course of his employment. It was submitted that there was no reason to limit the workplace of the MCG to the concrete stands and concourse. It was submitted that it would be reasonable to find on the balance of probabilities that the workplace was the entire MCG “precinct”. This included the surrounding Yarra Park area as depicted in the diagram headed “Parking - Yarra Park (ADCB 19). Mr Saitta agreed that the plaintiff had no choice but travel through that area to enter the MCG.

Section 46(1)(b) of the WIRC Act:

Alternatively, the plaintiff submitted that, having regard to the plaintiff’s job as a casual security guard at the MCG, the Court should find that there was a requirement to travel to the MCG “precinct” for the purpose of providing security services at the MCG.
A finding that the plaintiff’s injury was deemed to have occurred in the course of employment was open to the Court. It was submitted that the s46(2)(b) of the WIRC Act did not apply because the plaintiff was not travelling to his place of employment, but was injured whilst walking through the precinct which he had to do for the purposes of providing security services at the MCG.

Defendant’s reply to the Plaintiff’s Submission:

The plaintiff’s “alternative argument” that the plaintiff was injured “at his actual workplace” should be rejected for the following reasons:
·     the use of the expression “precinct” does not somehow magnify or expand the circumstances of the plaintiff’s employment, particularly the place where the plaintiff performed his duties for the defendant;
·     the plaintiff’s submission that they generally agreed with the factual matters set out in the defendant’s submission (referred to in paragraph 118 of the judgement);
·     the further factual matters as previously set out by the defendant.
The plaintiff’s reliance upon s.46 of the WIRC Act should be rejected for the following reasons:
· it again relied on the vague notion of a “precinct” and then, seemingly, the plaintiff “travelling”
within that “precinct”;
· the matters set out on behalf of the defendant referred to in paragraph 188 of the judgement;
· the plaintiff’s initial submission concerning s.46(1)(b) of the WIRC Act.

Discussion:

I thank the parties for their helpful submissions.
I was not overly impressed by the plaintiff as a witness and found some of his answers in cross-examination to be somewhat evasive and contradictory.
I found Mr Saitta to be a credible and straightforward witness.
In cross-examination it was put to Mr Saitta that the defendant clearly authorised their staff to use the Yarra Park carpark when working at the MCG.
Mr Saitta disagreed. I accept his evidence that the defendant simply gave their staff, including the plaintiff, the option of parking at the Yarra Park carpark and that the plaintiff, was not encouraged to use the Yarra Park carpark as the only means of getting to work.
I accept the evidence of Mr Saitta that the defendant did not tell the plaintiff how to get to and from work at the MCG.
In line with the Court’s decision in Kourtis, I do not accept that, at the time of the plaintiff’s incident, there was the relevant nexus between the plaintiff’s activity and the work that the plaintiff was employed to perform. The activity was not incidental to the plaintiff’s work or service.
On the evidence, I find that:
·     the plaintiff was free to choose how he got to work at the MCG;
·     there was no oral or written direction by the defendant for the plaintiff to drive and park at the Yarra Park carpark;
·     the defendant did not otherwise require or encourage the plaintiff to drive or be a passenger in a vehicle driven by his co-worker and park at the Yarra Park carpark;
·     the defendant did not otherwise require or encourage the plaintiff to enter the Yarra Park carpark from any particular gate;
·     the email dated 27 May 2023 identified three gates being open as entry to the Yarra Park carpark, all of which were open when the plaintiff arrived just before 11:00am;
·     the information provided by the defendant concerning what gates would be open to the plaintiff did not equate to the defendant requiring or encouraging the plaintiff to use the Yarra Park carpark;
·     once within the Yarra Park carpark, the defendant did not require or encourage the plaintiff to follow a particular route to where he was to sign on;
·     there were a number of different routes that the plaintiff could have followed to where he was to sign on once within the Yarra Park carpark;
·     the plaintiff had used public transport to get to and from work at the MCG in the past despite being provided information as to what gates would be open to enter the Yarra Park carpark;
·     the defendant did not reimburse the plaintiff or his co-worker for parking at the Yarra Park carpark;
·     the particular area of the Yarra Park carpark used by the plaintiff and his co-worker on the day of the incident was not reserved for employees of the defendant and was open to members of the public;
·     there were other public parking areas available to the plaintiff to park in the vicinity of the MCG;
·     the defendant had no control over what gates would be open or closed to the Yarra Park carpark;
·     the defendant did not own or lease the Yarra Park carpark or MCG;
·     a number of the defendant’s staff did not park at the Yarra Park carpark.
Whilst mindful that each case must turn on their own set of facts, I accept the defendant’s submission that the present case was akin to the decision of O’Dea and the comments of Magistrate Wright at [28] to [35]:

“28. The Henderson (also known as the Henderson and Speechley) principle requires a consideration as to whether the worker was doing something which he or she was reasonably require, expected, or authorised to do ‘in order to carry out his (or her) actual duties’.

29. In Michaels the Court of Appeal (at para 16) said that this is an essentially factual issue which must be considered in all the circumstances. This will include the nature of the employment and the activity undertaken at the time of the injury and its relationship to the work which the employee was engaged to perform. At para 16 the court stated: -

‘What must be shown is that the injury was suffered in the course of activities done as part of the work which the employee was engaged to perform.’

30. Counsel for the plaintiff did not dispute that principle. Rather, he said that there was sufficient nexus by reason of the requirement to use the Level 3 carpark doors (general or staff) for entry and egress.

31. In the present case I do not accept there was such a necessary nexus with the employment, having regard to all the circumstances.

32, Although an exact site for the fall was not stated by Ms O’Dea in her evidence, it was somewhere between the general entry doors and her car which was parked 20 to 30 metres away. She did not state the angle at which she approached those doors. The only stated nexus was the requirement to use those doors for entry to the Myer store.

33. She was not carrying any work item or object. There was no evidence that the carpark in the vicinity was controlled by Myer, let alone her employer L’Oreal. There was no restriction on any person using any of the carpark spaces on Level 3. She could have parked the vehicle on any floor and in any carpark space to use the Level 3 entry. She used the carpark space near the doors purely as a matter of convenience, rather than as a requirement, authorisation or expectation of her employer.

34. I agree with counsel for the defendant that this case is no different from one involving a place of employment with only one entry/exit door and a worker injured when approaching that door in a public access area such as a footpath (not controlled or owned) by the employer.

35. In such a case the injury would have occurred on a journey not covered by the provisions of the Act. I do not believe that this case is any different.”

I do not accept the plaintiff’s analysis and reliance on the decisions in Jones Lang Lasalle, Nikolaidis and Lukey. I accept the submission of the defendant that:
·     Jones Lang Lasalle could be distinguished on the basis that, in this case, the plaintiff was far from either the sign in window or the staff entry when he fell. The site of the plaintiff’s fall could not be likened to the ground floor foyer where Ms William (the worker in Jones Lang Lasalle) fell as it was not the only means of accessing the workplace;
·     Nikolaidis could be distinguished as there was no designated carpark. In this case, the whole of the Yarra Park carpark was open to be used, subject to gates being open or closed at the direction of the MCC. The defendant had no control over the carpark.
·     Lukey could be distinguished as it was not necessary for the plaintiff to traverse the grass area of the Yarra Park carpark if he had used public transport. The defendant did not own the Yarra Park carpark or MCG.
I do not accept the plaintiff’s submission that, even if the Court was not satisfied that the plaintiff was directed or instructed to use the Yarra Park carpark, the Court should find that the plaintiff was clearly permitted or encouraged to do so by the defendant. On the evidence, I do not accept that the defendant encouraged the plaintiff to:
·     drive or be a passenger in a vehicle driven by his co-worker and park at Yarra Park;
·     enter the Yarra Park carpark from any particular gate;
·     follow a particular route to the point where he was to sign on, once within the carpark.
I do not accept the plaintiff’s submission that the plaintiff had no other alternative than to cross the Yarra Park grasslands forming part of the MCG precinct to access Gate 1A. On the evidence, I find that the plaintiff did have other alternatives to access Gate 1A and did not have to necessarily cross the Yarra Park grasslands.
Based on the evidence and my findings, I also do not accept the plaintiff’s submission that it was not to the point that:
· the plaintiff was not directed to drive to the MCG and could have caught public transport; and
· the defendant did not own or have control over either the MCG of Yarra Park.
There was no requirement, authorisation, or expectation by the defendant for the plaintiff and his co-worker to park in the Yarra Park carpark on the day of the incident. The plaintiff was not doing something which he was reasonably required, expected, or authorised to do to carry out his duties.
I do not accept the alternative argument of the plaintiff that the plaintiff was injured at his actual workplace on the basis that the plaintiff’s workplace was the entire MCG “precinct”. The plaintiff was employed as a security guard at the MCG stadium. I accept the defendant’s submission that the plaintiff’s use of the expression “precinct” does not expand the circumstances of the plaintiff’s employment from the place where the plaintiff performed his duties for the defendant i.e., the MCG stadium. The submission is not supported by the non-disputed facts referred to in paragraph 118 of this judgment and by the findings of this Court.
With respect to section 46(1)(b) of the WIRC Act, the Court makes the following comments.
It is helpful to refer to Magistrate Wright’s discussion in O’Dea at [18] to [22]:

“18. …. Prior to late 1992 workers were covered under the Act for injuries sustained while travelling between the place o residence and the place of employment. That general entitlement was abolished by Act 10191 in 1992.

19. However, that protection was maintained for certain journeys and certain workers by way of the provisions in s.83. The Second Reading Speech stated as to the relevant provision that ‘motor vehicle accidents, however, which occur in the course of work, for example while driving a truck or taxi, will still be compensable under Workcover’.

20. The saving provisions as to journeys in s.83 were tightened by Act 50 of 1994 making it clear that ‘for the purposes of s. 82(1) and 82(2)’ that s.83 would be relevant.

21. I find that Ms O’Dea is not covered by s.83(1)(b). there must be regard to the nature of her employment or specific task which may require the worker to travel to determine whether a worker is ravelling for the purpose of her employment.

22. She was not travelling to various clients or their premises for the purposes of selling cosmetics. She had in fact only worked at the same premises (Myer Southland) for about one and a half to two years prior to the fall. There was no specific task, and the nature of her employment did not require her to travel other than between her place of residence and place of employment. She was not travelling for the purpose (in that regard) of her employment.”

The Court makes the following findings:
·     the plaintiff was not required to travel for the purposes of employment;
·     the plaintiff was employed solely as a security guard by the defendant and, for many months, had worked as a security guard outside the changing room at the MCG;
·     on the day of the incident, there was no suggestion that there was a specific task requiring the plaintiff to travel, other than getting to work.
Accordingly, the Court does not accept the plaintiff’s submission that, having regard to the plaintiff’s job as a casual security guard at the MCG, it should find that there was a requirement for the plaintiff to travel to the MCG “precinct” for the purpose of providing security services at the MCG.
Furthermore, based on the Court’s findings, the Court does not accept the plaintiff’s submission that section 46(2)(b) of the WIRC Act did not apply because the plaintiff was not travelling to his place of employment. The Court does not accept that the plaintiff’s submission that the plaintiff was injured whilst walking through the MCG “precinct”, which he had to do for the purposes of providing security services at the MCG.
The plaintiff has not discharged the onus of proof. The Court is of the view that the plaintiff was not injured in compensable circumstances.
The proceeding will be dismissed.
The parties are invited to provide the appropriate orders.

Magistrate M J Richards

Dated 12 March 2025