Singh v Thompson Health Care Ltd
[2009] NSWWCCPD 11
•30 January 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Reported Decision: Singh v Thompson Health Care Ltd (2009) 8 DDCR 161 | ||||||
| CITATION: | Singh v Thompson Health Care Ltd [2009] NSWWCCPD 11 | |||||
| APPELLANT: | Shaun Singh | |||||
| RESPONDENT: | Thompson Health Care Ltd | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-5199/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 10 September 2008 | |||||
| DATE OF APPEAL DECISION: | 30 January 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 10 of the Workers Compensation Act 1987; ‘daily or periodic journey’ and ‘place of employment’. | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Teakle Ormsby Conn | ||||
| Respondent: | Moray & Agnew | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 10 September 2008 is revoked and the matter is remitted to the same Arbitrator for re-determination in accordance with this decision. | |||||
| The costs of the first arbitration proceedings are to follow the costs of the second arbitration hearing. The Respondent to pay the Appellant’s costs of the appeal. | ||||||
INTRODUCTION
On 7 June 2007, Mr Singh, an assistant nurse at a Randwick nursing home, drove to work at about 9pm and parked his car in the staff car park. He then walked to the KFC store to buy food, with the intention of returning to work to start his shift at 10pm. Unfortunately Mr Singh never commenced his shift because he was the victim of an unprovoked attack by two men when he was buying his meal. Mr Singh was injured in the attack and was taken to hospital by ambulance.
The question for the Arbitrator was whether Mr Singh was still on a periodic journey to his place of employment (section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’)), when he was assaulted, and therefore his injuries were compensible, or whether he had already completed the journey when he drove to work and parked his car.
The Arbitrator found that Mr Singh had completed his journey prior to the assault and therefore the injuries were not work related. Mr Singh appeals this decision on the basis that the Arbitrator failed to properly apply the law in relation to journey claims.
BACKGROUND TO THE APPEAL
On 8 October 2008, Mr Shaun Singh (‘the Appellant/ Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 September 2008.
The Respondent to the appeal is Thompson Health Care Pty Ltd (‘the Respondent/Employer’).
Mr Singh alleges that he suffered injuries to his left shoulder, face, left eye, right buttock and anxiety in the assault.
The Respondent’s insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’) accepted provisional liability for Mr Singh’s claim in respect of weekly compensation payments from 7 June 2007 to 29 August 2007 and for the payment of medical expenses.
On 31 January 2008, CGU issued a section 74 Notice disputing Mr Singh’s claim on the basis of sections 4, 10 and 11 of the 1987 Act. It relied on the employee’s claim form dated 28 September 2007, Mr Singh’s police statement dated 15 June 2007 and a factual investigation report by G. Hughes and Associates dated 11 December 2007. CGU advised that weekly compensation payments would cease on 13 February 2008.
Mr Singh filed an ‘Application to Resolve a Dispute’ in the Commission on 7 July 2008. He alleged that he has not been able to return to work since the assault and claimed weekly compensation at a rate of $897.84 from 8 June 2007 to date and continuing, section 60 expenses, not fully particularised, and $529.00 for replacement spectacles, broken in the assault.
On 29 July 2008, the Respondent filed a ‘Reply’ annexing a letter dated 29 July 2008, from Moray & Agnew solicitors addressed to Mr Singh’s solicitors, clarifying that the Worker’s claim had been disputed in the section 74 Notice on the basis that he had not suffered an injury within the meaning of section 4, his employment was not a substantial contributing factor to the injury under section 9A, he was not injured whilst on a periodic journey under section 10 and he was not on an ordinary recess within the meaning of section 11 of the 1987 Act.
The matter was listed for a conciliation and arbitration on 2 September 2008. The parties were unable to settle the claim and the matter proceeded to arbitration hearing. The Worker gave evidence and was cross-examined. At the conclusion of the hearing the Arbitrator reserved his decision and issued a ‘Certificate of Determination’ and a written Statement of Reasons (‘Reasons’) on 10 September 2008. It is from this decision that Mr Singh now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 September 2008 records the Arbitrator’s orders as follows:
“1. Award for the Respondent.
2. No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(1) finding that Mr Singh’s periodic journey ended when he parked his car in the staff car park;
(2) failing to find that Mr Singh attended his place of employment for a personal reason, prior to commencing duties;
(3) failing to have proper or adequate regard to Mr Singh’s intention prior to and at the time of the injury, and
(4) failing to find that Mr Singh was injured on a periodic journey at the time of the assault.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 8 October 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case and the Arbitrator’s findings and orders result in the Worker receiving no compensation and therefore, the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Leave to appeal is granted.
TRANSCRIPT AND ADDITTIONAL EVIDENCE ON APPEAL
Unfortunately the Arbitrator failed to record the arbitral proceedings as a result of a recording malfunction, consequently there is no recording from which the Commission can prepare a transcript.
On 27 October 2008, the Commission notified the parties that there was no transcript of the proceedings and sought further submissions in relation to the future conduct of the appeal.
The solicitors for the Respondent confirmed that the appeal could proceed on the documentary material before the Commission, including the detailed statement of reasons prepared by the Arbitrator.
The Appellant’s solicitors submit that whilst the Arbitrator’s decision did not turn on the oral evidence, it may be relevant on review. As a result of the absence of a transcript, the Appellant’s solicitors seek to have admitted on appeal an unsigned supplementary statement from Mr Singh dated 5 December 2008.
The unsigned supplementary statement sought to be admitted on appeal reads:
“1. My name is Shaun Singh.
2. On 7 June 2007 when I travelled to work it was my intention to leave myself enough time t [sic-to] have dinner before I started my shift. I would have achieved this if I had not been assaulted.
3. I did not change my intention throughout.
4. I believe that I conveyed the above evidence when I gave evidence in chief.”
In relation to the impact on the appeal process of the absence of a transcript of the arbitral proceedings, the Commission, depending on the circumstances, has taken various approaches to the conduct of appeals in the absence of a transcript of the arbitral proceedings, (see Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 (‘Brines’), Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47, Ashley v Ashmore Constructions Pty Limited [2006] NSWWCCPD 225, Safi v Australian Concert & Entertainment Security [2007] NSWWCCPD 128, Miles v ACE Semi Trailer Sales Pty Ltd [2007] NSWWCCPD 145, IF & LM Smith v Barrass [2008] NSWWCCPD 143, and Styash Pty Ltd v Nguyen [2008] NSWWCCPD 146).
In Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; (2007) 4 DDCR 206 (‘Zheng’) there was no transcript or sound recording available of the evidence given before the Arbitrator. The Presidential member dealing with the appeal overcame the absence of the transcript by relying upon a summary of the relevant evidence from a solicitor for one of the parties. The Court of Appeal noted that the solicitor’s narration of the relevant facts was not disputed by the opposing party and in all the circumstances it was determined there was no error on the part of the Presidential member in proceeding to deal with the appeal relying, inter alia, on the solicitor’s narration of the relevant evidence.
In Zheng, Bryson JA (with whom Handley JA and Bell J agreed) in dealing with the absence of transcript stated:
“This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
In the present case, the evidence, the Appellant seeks to have admitted on appeal has been prepared and filed in response to the Commission’s failure to record the evidence, and in turn, prepare a transcript of the arbitral proceedings. It is not fresh evidence, but evidence, that is in effect evidence in substitution of the oral evidence given at the hearing but not transcribed. Mr Singh’s solicitors submit that, given the absence of a transcript of Mr Singh’s evidence, it is in the interests of justice that the statement be admitted on appeal.
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. I do not reproduce the Practice Direction but I have had regard to it in the determining of this issue.
In the current matter, Mr Singh was the only witness who gave oral evidence and was cross-examined at the hearing.
At paragraph 10 of his Reasons, the Arbitrator transcribed from his hand written notes Mr Singh’s evidence as follows:
“ 10. I took a handwritten record of the oral evidence, as relevant, to the following effect:
Examination in chief
(Q): Were you asked on 7 June 2007 to do a 10pm shift?
(A): Yes the shift started at 10pm, I arrived at about 9pm.
(Q): What were your intentions when you left home?
(A):To have dinner on the way because I received a call about 6pm. I had never previously been on a nightshift. My wife was not at home. I was at the gym. I went home and took a shower before leaving for work.
(Q): Did you park your car in the car park?
(A):Yes I then went to my locker. I placed my bag in my locker and took my bumbag out. I then walked out to get my dinner.
(Q): Did you hold onto your original intention throughout this period?
(A): Yes.
Cross examination
(Q): Did you park in the nursing home car park?
(A): Yes I parked in the area set aside for staff.”
The information in the statement sought to be admitted on appeal accords with the Arbitrator’s detailed record of Mr Singh’s evidence in his Reasons (see above). Unfortunately the document sought to be admitted on appeal as a statement from the Worker has not been signed nor has any additional evidence been served that the Worker has adopted it. The Respondent to the appeal has, however, not raised any objection to its admission in the appeal proceedings.
Whilst I am most reluctant to allow into evidence an unsigned statement there are a number of features of this case, which suggest to me that it is just to do so. These include:
(a)the purpose of the statement is to confirm oral evidence adduced before the Commission;
(b)the content of the statement is consistent with the Arbitrator’s notes of the oral evidence of the worker as detailed in paragraph 10 of his reasons;
(c)the credit of the witness is not in issue;
(d)there is no objection by the respondent to the admission of the unsigned statement, and
(e)the admission of the unsigned statement in the circumstances of this case is consistent with the approach adopted by the Court of Appeal in Zheng.
For these reasons I allow into evidence, on appeal, the unsigned statement of the Worker dated 5 December 2008.
Whilst it is regrettable there is no transcript of the proceedings in the current matter, neither party has submitted that the appeal cannot proceed, without a transcript. In Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 the appeal was able to proceed in the absence of a transcript of portions of the oral evidence after the parties agreed that the Arbitrator’s Statement of Reasons accurately encapsulated the evidence given and that the evidence went no further than confirming material that was already contained in the written statements.
The Arbitrator in the present matter accepted the Worker as a witness of truth and his credit is not in issue in the appeal. The oral evidence was within a narrow compass, and the parties agree the Arbitrator accurately encapsulated the evidence in his Reasons for decision (see Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43). I am satisfied that with the documentary evidence, the Arbitrator’s Statement of Reasons and the parties’ submissions on appeal, that I can fairly undertake a review of this matter.
EVIDENCE
Mr Singh prepared a statement dated 22 May 2008. This statement is also unsigned, and in the absence of a transcript it is not apparent if it was adopted by Mr Singh at the arbitration hearing. I will assume from the material before me that there was no objection to the Arbitrator relying on the statement as if Mr Singh had adopted it.
Mr Singh was employed as an assistant nurse at ‘Milford House Nursing Home’ in Randwick. He commenced casual employment with the nursing home on 15 May 2007.
On 7 June 2007, he received a telephone call at about 6pm requesting him to work a shift commencing at 10 pm. He left his home in Sussex Street, Sydney, at about 9 pm, drove to the nursing home and parked on the nursing home premises. He then went to his locker, placed his bag in the locker, took out his ‘bum bag’ and left to get something to eat in the Randwick shopping centre.
Whilst waiting for his order at KFC, two men approached Mr Singh. One initially took his burger, and then said to Mr Singh “do you want to fight”. Mr Singh did not respond and moved away. He next felt a head butt on the right side of his head, when he turned he was hit on the forehead over his left eye by one of the men who also had a beer bottle in the hand that struck Mr Singh. Mr Singh felt immediate swelling. He was then punched in his left cheek and right cheek. His upper denture plate was bent and loosened. Mr Singh went down to the ground and one of the assailants used the beer bottle in a stabbing motion on his left shoulder. Mr Singh started falling to the ground and his right leg slipped on beer that had spilt on the floor. Mr Singh tried to escape through an internal door but it was closed. Prior to departing the store, one of the assailants poured beer over Mr Singh and struck him with a “karate chop” on the base of his neck.
Mr Singh stated that the assault lasted 10-12 minutes. An ambulance and the police arrived 20 minutes later and he was taken to Prince of Wales Hospital. He sustained injury in the form of a lump on his forehead near his left eye, bruised and swollen cheek, sprains to his neck and left shoulder, cut on the left wrist, a 2.2 cm tear on his left hip and a “tear” to his left shoulder.
At the date of his statement, Mr Singh said that his neck, left shoulder and hip were still sore and he could not move his left arm without pain.
Mr Singh attempted to return to work after about one week off work. His pain increased, particularly after he completed a double shift, after which he could not work. He needed pain killers to work and has been unable to return to work. He stated that he remained certified unfit for work.
The medical evidence relied on by the Worker included a medical certificate from Dr Lenthen general practitioner, certifying Mr Singh unfit for work from 18 June 2007 to 7 August 2007 inclusive as a result of soft tissue injuries to the face, left shoulder, right buttock, laceration to the left eye and anxiety.
There were four WorkCover medical certificates from Dr Ng, general practitioner who recorded the same diagnosis as Dr Lenthen.
In a certificate dated 25 June 2007, Dr Ng certified Mr Singh unfit for work from 7 June 2007 to 3 August 2007. The certificate dated 3 August 2007, certified Mr Singh unfit for work from 3 August 2007 to 17 August 2007. On 22 August 2007 the doctor certified the Worker unfit for work until 7 September 2007. The final certificate in evidence is dated 21 September 2007 and certifies Mr Singh unfit until 5 October 2007.
Mr Singh relied on a payslip covering the period 6 June 2007 to 19 June 2007, showing gross wage for the period of $1,073.50 and a group certificate for the year ending 30 June 2007 showing total earnings for that year in the employ of the Respondent of $3,331.00.
The Respondent relied on the Workers Compensation Claim Form dated 28 September 2007. The description of the incident was “Assault” and the description of injury was “Face, ‘Left Shoulder’, ‘Tear in Right Buttock’, Trauma”. The date and time of injury was nominated as 7 June 2007 at 9.30pm.
The Respondent relied on two statements. One is a copy of Mr Singh’s Police unsigned “Statement of Witness”, dated 15 June 2007, and the other, being a short, signed statement from Ms Eileen Taylor RN (registered nurse) employee of the Respondent dated 5 December 2007.
The Worker’s police statement is in similar form to his statement referred to in [38] to [44] above in relation to the details of the assault and the injuries sustained. In paragraph (3) the Worker stated:
“On the evening of Thursday 7th of June 2007 I attended my place of work at Milford Nursing Home at Randwick about 9:00pm, as I had to begin my shift at 10:00pm. At this time I parked my car and decided to walk to Belmore Road Randwick to get some dinner at the KFC store. I walked to the KFC store arriving there about 9:15pm…”
The Respondent also relied on a copy of the Worker’s roster from the Respondent for the period 6 June 2007 to 19 June 2007 in which Mr Singh worked a total of 53.5 hours.
ARBITRATOR’S DECISION
The Arbitrator found that the Worker’s dominant purpose throughout his journey was to go to work. He further found that when he parked his car in the staff and accessed his locker the Worker was treating his Employer’s premises as a ‘place of employment’.
The Arbitrator was influenced by the fact that the Worker parked his car in the staff car park, apparently intending to leave it there until the cessation of the day’s employment. He noted that in his view the Worker’s case might have been strengthened had he driven this car from the staff car park to the local shops to purchase his dinner.
The Arbitrator said at [37(h)]:
“Both Sugerman P and Moffet JA stressed the importance of intention in Kerr. It seems to me however that the intention (whatever its relevance at a particular point in time) must be subsidiary to fact.”
It seems to me that the Arbitrator found that given it was the Worker’s ultimate intention to undertake employment duties on the day in question, when he reached the physical location of his employer’s premises, his journey ended. The Worker’s use of the car park and locker served to confirm that view.
Whilst not expressly saying so, the Arbitrator’s findings are consistent with the approach adopted in Musumeci v Gem Engines [2002] 23 NSWCC 128 (‘Musumeci’). In that case the Applicant was to commence work at 7am. He drove his car into the car park occupied by his employer, which adjoined the employer’s factory. A tall metal and wire mesh fence enclosed the car park and the factory buildings. The Worker arrived in his motor vehicle at 6.55am and parked in the car park. His practice was to walk down the driveway from where he parked his car and bundy on by placing a card in a machine. The distance from the factory to the car park was 50 metres. After parking his car the worker was assaulted before leaving the car park. In that matter her Honour Judge Quirk found that the Worker was not on a periodic journey at the time he sustained his injuries. Her Honour said at [18]:
“The point of all these cases seems to be that a journey must have a starting point and a end point in temporal terms, and cannot, in a difficult case such as this, be artificially extended to when the worker actually commences his daily labours even though he has arrived at his ‘place of employment’.”
SUBMISSIONS ON APPEAL
Appellant’s submissions
The case of Musumeci is not authority for a general proposition that a periodic journey comes to an end when and where a worker parks his /her car.
Musumeci has no application in circumstances where a worker:
(a) arrives and parks a considerable amount of time before starting work, and
(b) intends to attend work for a personal reason before returning to commence work.
The legislation does not define the boundary of the “place of employment”, contrary to the arrival and departure from the “place of abode” and the test is therefore less rigid.
“It is a too limited an inquiry to determine the character of the act of parking as the Arbitrator did.” It is relevant to consider the time the worker is to start work and what he/she intends to do before starting work.
Kerr v New South Wales Club [1971] 45 WCR 13 (‘Kerr’), is authority for the following propositions:
(a) part of a single periodic journey may include more than one visit to the place of employment;
(b) the intention of the Worker is not decisive, but is relevant as to whether a worker’s travel is characterised as a periodic journey, and
(c) “consideration of the place of employment as a boundary to a periodic journey should be made in the knowledge of when a worker’s duties begin and end” (Application, Submissions 2.8(2)).
The facts of the current case differ from those in Kerr, but the principle is the same, because the Worker briefly attended the workplace for personal reasons and was injured before attending his place of employment for the purpose of starting work.
Respondent’s submissions
The Respondent submits that the Appellant is attempting to re-ventilate issues argued at first instance and his submissions do not point to an error of fact or law in the Arbitrator’s decision.
The factual circumstances in Kerr were entirely different to the factual circumstances in the present matter. Taking an analogous situation, if Mrs Kerr arrived home and then returned to the workplace and sustained injury, that injury would have occurred after her journey home was completed and would not be compensible.
The Respondent submits that the Arbitrator’s finding was correct because:
(i) the Worker was called to work a shift at short notice on 7 June 2007;
(ii) Mr Singh drove in a private vehicle to the Respondent’s premises and conceded in cross examination that he parked his car in the designated employee car park;
(iii) he was assaulted attending a KFC restaurant prior to commencing his shift, and
(iv) the Arbitrator’s decision was consistent with Musumeci.
The Arbitrator did not err in not finding that Mr Singh attended his place of employment for a personal reason because:
(i) the only reason the Appellant travelled to the Respondent’s premises on 7 June 2007 was to perform his employment duties, and
(ii) it was open to the Arbitrator to find that the Appellant attended the Respondent’s premises for the purposes of his employment.
The Arbitrator’s reasons disclose that he considered the Worker’s intention in respect of his arrival at the Employer’s premise on the day in question and the findings that he made were open to him on the evidence and do not vitiate the decision.
DISCUSSION AND FINDINGS
The issue on appeal concerns whether Mr Singh had completed his daily or periodic journey between his place of abode and place of employment, for the purposes of section 10 of the 1987 Act, when he first arrived at his employer’s premises at about 9 pm, or whether he remained on a periodic journey, to which the benefits of section 10 would apply, whilst he went to the shops to have his evening meal, ending the journey only when he returned to his employer’s premises (had he not been assaulted) with the intention of commencing duties at 10pm.
The relevant parts of section 10 read:
“10 Journey claims
(cf former s 7 (1) (b)-(d), (f), (g))
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(3) The journeys to which this section applies are as follows:
(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,
…
(6) In this section:
…
‘place’ of abode includes:(a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and
(b) the place to which the worker is journeying with the intention of there spending the night following a journey.”
The evidence discloses that the evening of 7 June 2007 was the first occasion on which the Worker had been required to commence his shift at 10pm. I infer from the evidence (paragraph 10 of the Statement of Reasons) that his usual arrangements for an evening meal had been interrupted when he unexpectedly received a request from his employer to work the night shift, which necessitating him purchasing a meal from local shops, or as it turned out, from the KFC store. I infer from the evidence that the KFC store is located a short walk, within minutes, from the Employer’s premises.
Mr Singh’s submissions are essentially that it was his intention to undertake a journey, which included his attendance at the local shops to purchase and eat his evening meal before commencing duties. Although he may visit his place of employment for a personal reason during the course of that journey, with the intention of returning there to commence duties at a later point in time, this does not destroy the character of the journey as a ‘periodic journey’ between his place of abode and his place of employment. Reliance is placed on Kerr.
In summary, the Respondent argues that the Arbitrator was correct in finding that Mr Singh’s periodic journey from his place of abode to his place of employment concluded once he parked his car in the designated car space, (see Statement of Reasons page 10 (f) and (g)). Apart from parking his car in the designated car space the Arbitrator was also persuaded that the use of Mr Singh of his locker for the purposes of depositing one bag and retrieving another was evidence that he was treating the premises as his place of employment.
In the Workers Compensation Act 1926 (‘the 1926 Act’) ‘place of employment’ was defined as:
“The premises, works, plant or place for the time being occupied by or under the control or management of the employer by whom the worker concerned is employed, and on or at or in connection with which the worker was employed at the time of the injury.”
There is no definition of “place of employment” in the 1987 Act under which this application proceeds.
The facts in this case are not dissimilar to those with which the Court of Appeal was concerned in Kerr. In that case the Worker had left her place of employment to attend a nearby church. She left a heavy bag at her place of employment with the intention of returning to retrieve it before then proceeding on by train to her place of abode. She was injured during the course of the journey from the church back to her place of employment. Ferrari, J in the Workers Compensation Commission entered an award for the Respondent, finding that the Worker had embarked upon two journeys, one being from the place of employment to the church and back and the other being from her place of employment to her abode. The later only being protected by the journey provisions of the former Act.
The Court of Appeal found that in taking that approach his Honour had misdirected himself and an error of law had occurred.
Sugerman P said (at page 15):
“After mass the appellant returned to the New South Wales Club, but she returned to the club, not in my opinion has her place of employment, but solely as a place where she had left her bag and for the purpose of picking it up. The point, as I have said is a nice one, but I agree with Mr Einfeld’s submission in this respect that this present case is no different in principle, because the bag had been left at the club and was picked up from the club, from a case in which a worker having left his place of employment, leaves the bag with, say, the liftman, or at a neighbouring shop while he goes off on some errand or mission with the intention of returning later to pick it up, then returns to pick it up and goes off on a further journey home. The appellant in my opinion left her place of employment as such and commenced her journey to her place of abode when, having finished work for the day at 5.15p,m. she set off on the first stage of the journey in accordance with the intention which His Honour found she then possessed.”
Asprey JA agreed, he said (at page 17) that the bag in question was a means of conveying her own domestic and household goods to her home. She merely used the employer’s premises as a convenient repository for the bag, which was too heavy for her to carry to the church during the rain when she also had to use her umbrella. Her intention of returning to the club was not to work or to do anything in any way remotely connected with her work. She might as well have left the bag at any other place, which would permit her to pick it up when she did not wish to carry it to and from the church.
Asprey JA went on (at page 18) to consider the phrase, “place of employment” in the context in which it was found in section 7 of the 1926 Act. He noted that in that section the phrase “place of employment” is coupled with the phrase “daily or other periodic journey”. When the two phrases were read together his Honour found that the journey from place of abode to place of employment is not one undertaken by a worker as a purposeless exercise but one entered upon to travel to a place to which he is required to go with the intention of performing the duties which he is employed to execute. He went on to say:
“The fact that, after some deviation or break in the journey, not falling within sub-pars (i) or (ii) of par. (b) of sub-s. (1) of s. 7, he intents to call at the place, where during his working hours his duties are performed, for some personal purpose of his own unconnected with his employment does not in my view, constitute that place the commencing point of a fresh journey from his place of work, a completely new terminus a quo so as to make the subsequent portion of his journey one which then commences between his place of employment and his place of abode”.
His Honour noted that the daily or other periodic journey in connection with the phrase ‘place of abode’ and ‘place of employment’ (referring to the 1926 Act) indicated that they are places being travelled between with the intention of residing therein or working thereat respectively. Although, as I have said, the phrase ‘place of employment’ is undefined in the 1987 Act, ‘place of abode’ is defined as (a) the place where the worker has spent the night preceding the journey and from which the Worker is journeying; and (b) the place to which the worker is journeying with the intention of there spending the night following a journey. The inclusion of the words ‘with the intention’ in the definition of ‘place of abode’ in the 1987 Act lends some support to the notion that in order for a worker to be on a periodic journey to his place of employment there must be some intention to undertake employment related duties before that place will be treated as the ‘place of employment’ for the purposes of entitlements falling under section 10 of the 1987 Act.
In Vetter v Lake Macquarie Council (2000) 202 CLR 439 (‘Vetter’), Gleeson CJ, Gummow and Callanan JJ, held that there was no obligation upon a worker to take the shortest or most direct route from the worker’s place of work to place of abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment. Their Honours held (at [29]) that there was no reason why a worker might not in the statutory meaning of a journey, choose a route, albeit an indirect or 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 the character of a journey between his or her place of work and place of abode, and there is no material increase in the risk during or after any interruption or deviation. 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 a kind posed by the Court of Appeal, namely, was the worker engaged in one or more journeys?
In Vetter, Kirby J said (at [85]):
“That Act is intended to apply to the employment journeys of workers in a great variety of employment and domestic situations. It provides a valuable benefit to such workers. This benefit should not be narrowly construed nor confined to journeys in which the employer has some direct or notional interest. From the first provision of this benefit in the 1926 Act, the realities of interruptions of, and deviations from, direct journeys to and from work were accepted as inevitable and not necessarily disqualifying. The fact that s 10 of the Compensation Act contemplates such interruptions and deviations contradicts a narrow classification of a ‘journey’ as one to a private, non-statutory destination, simply because it involves a departure from the direct journey between permitted work origin and place of abode. So long as the journey in question can fairly be characterised as a ‘journey’, or part of a ‘journey’, within s 10, questions of interruption and deviation must be left to the judge to determine in accordance with s 10(2). It is inconsistent with the terms of that subsection for interruptions and deviation, as such, to deprive the travel involved of the character of a ‘journey’ within the Compensation Act.” (emphasis added)
I am of the view that Mr Singh’s intended journey for the purposes of section 10 of the 1987 Act commenced when he set out from his place of abode and would have ended, had he not been assaulted, when he returned to his employer’s premises for the purposes of commencing his duties after consuming his evening meal at the nearby KFC store.
The Worker’s actions in parking his car in the space allocated for staff parking at his employer’s premises and thereafter accessing his locker for the purposes of depositing and retrieving certain belongings did not destroy the character of the journey that I have described as a periodic journey.
As in Kerr, in my view Mr Singh merely utilised his employer’s premises as a ‘repository’ for his personal belongings, and as a convenient place to park his car, during the course of his journey to his ‘place of employment’ via the local shops. He had no intention of commencing duties when he reached his employer’s premises at about 9pm. His intention in going there was collateral to ultimately reaching his place of employment for the purposes of commencing duties at 10pm. It would be an error to approach the matter, as the Arbitrator did, by deciding whether in fact Mr Singh had undertaken two distinct journeys, one between his place of abode and place of employment and one from his place of employment, for private purposes, to the local shops and return. That much has been made clear from the dicta in Kerr and Vetter.
As stated in Mills NSW Workers Compensation (second edition) page 199 “Kerr’s case seems to have made it clear that the worker’s intention for making the journey is a primary factor.” The learned authors go on to note “the concept of a journey to the place of employment carries with it the implication that it is made for the purpose of carrying out the duties of employment: Jones v Rex Aluminium Co Pty Ltd [1957] SR (NSW) 631” (‘Jones’).
In Jones, Owen J, with whom Street CJ and Roper CJ in Eq agreed, held that a worker, who was injured on a journey to his place of employment to collect wages, during a period when he was already incapacitated, was not on a periodic journey. His Honour said (at 633):
“The journey under consideration in the part of the sub-section now in question must be one of a regular or periodic series in which the employee is proceeding to or returning from his working place, which implies that the journey takes place on a working day and for the purpose of carrying out the duties of his employment and subsequently returning to his place of abode” (emphasis added).
Taking the example in Kerr, the Employer submitted that an analogous situation would have Mrs Kerr arriving home from her place of employment and then leaving again for a personal reason, sustaining injury before returning home a second time. With respect, I disagree that the analogy suggested is a valid one. The authority of Kerr is not concerned with circumstances where a worker reaches her place of abode and then travels elsewhere; it is confined to considerations of the attendance at a place of employment for a collateral and unrelated purpose. One cannot regard questions relating to reaching their abode in the same way. A further reason why the analogy is unhelpful is that ‘place of abode’ unlike ‘place of employment’, is defined in section 10(4) and thus is unable to be construed in the same way as ‘place of employment’. The analogy therefore in my opinion lacks persuasive force.
The Employer’s submitted that the Arbitrator’s decision was correct and consistent with settled authority, namely, Musumeci, the facts and findings of which are summarised in [57] above.
The facts in this case are distinguishable from the facts dealt with by her honour Judge Quirk in Musumeci for a number of reasons:
(a)the Worker in this matter initially arrived at his place of employment one hour before he was due to commence duties;
(b)he had been called by his employer to undertake the evening shift at short notice;
(c)I infer from his evidence that his usual arrangements for partaking in his usual evening meal had been interrupted, by being called upon to work at short notice, which necessitated his purchasing his meal before commencing duties, and
(d)at all times Mr Singh’s intention was to travel to the local shops, via his place of employment, to undertake an evening meal before attending his place of employment to commence work at 10pm commencing duties.
I find that Mr Singh was injured during the course of a daily or other periodic journey between his place of abode and place of employment (section 10(3)(a) of the 1987 Act). I find that his intention was to embark on a single journey between his place of abode and his place of employment, which included his attendance at the local shops to purchase his evening meal. I am not persuaded that having left his employer’s premises to go the local shops, in the circumstances of this case, that the journey was deprived of its character as a daily or other periodic journey. To do otherwise would in my view too narrowly construe a provision which provides as Kirby J described in Vetter as a valuable benefit to workers
The proceedings before the Arbitrator focused on the determination of whether or not Mr Singh was on a daily or other periodic journey. Questions of interruption or deviation were not argued, nor was it argued that the risk of injury had been materially increased because of any interruption or deviation. Those matters were not identified in the section 74 notice and are not in issue.
Detailed submissions were made to the Arbitrator and noted in his Statement of Reasons as to the Worker’s entitlement to weekly compensation and benefits under section 60. Having decided against the Worker on the principle issue the Arbitrator did not determine those issues.
In the circumstances, particularly in the absence of a transcript of the evidence and submissions, I do not consider it appropriate that I determine those issues (incapacity and section 60) on appeal.
The matter will be remitted to the same arbitrator to re-determine the matter and any outstanding issues in accordance with the reasons in this decision.
Conclusion
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority v Fritzi Chemler [2007] NSWCA 249: (2007) 5 DDCR 287 at [28]), I am of the view for the reasons given in this decision that the Arbitrator reached an erroneous conclusion when he decided that Mr Singh was not on a daily or other periodic journey at the time he was injured and therefore the matter must be re-determined in accordance with this decision.
I propose to remit the matter to the same arbitrator to determine the Worker’s entitlement, if any, to weekly compensation and any entitlement to benefits under section 60. The parties will no doubt wish to consider the state of the evidence on those issues before the matter is re-listed for arbitration.
DECISION
The decision of the Arbitrator dated 10 September 2008 is revoked.
The matter is to be remitted to the same Arbitrator to re-determine in accordance with this decision.
COSTS
I order the Respondent to pay the Appellant’s costs of this appeal.
I order the costs of the first arbitration to follow the costs of the second arbitration
Judge Keating
President
30 January 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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