Sydney Local Health District (wrongly sued as Sydney South West Area Health Service) v Fragar

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sydney Local Health District (wrongly sued as Sydney South West Area Health Service) v Fragar [2014] NSWWCCPD 59
APPELLANT:	Sydney Local Health District (wrongly sued as Sydney South West Area Health Service)
FIRST RESPONDENT: SECOND RESPONDENT:	Sally Fragar Lithgow Community Private Hospital Ltd
APPELLANT’S INSURER: SECOND RESPONDENT’S INSURER:	Employers Mutual Ltd CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4807/13
ARBITRATOR:	Mr R Stanton
DATE OF ARBITRATOR’S DECISION:	9 May 2014
DATE OF APPEAL HEARING: DATE OF APPEAL DECISION:	29 August 2014 11 September 2014
SUBJECT MATTER OF DECISION:	Section 10 of the Workers Compensation Act 1987; whether nurses’ accommodation unit was a place of employment; application of the principles in Toner v Leconfield Colliery [1961] 35 WCR 101
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr S Grant, instructed by Hicksons
First Respondent: Second Respondent:	Mr I Latham, instructed by Kenny Spring Solicitors Mr G Levick, instructed by Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 9 May 2014 is confirmed. 2. The appellant is to pay the first and second respondents’ costs of the appeal.

INTRODUCTION

This case concerns an injury received by a worker during the course of a journey between two places of employment, a journey to which s 10(5) of the Workers Compensation Act 1987 (the 1987 Act) applies. The worker was a nurse travelling between two hospitals where she was employed, one in Lithgow and the other in Sydney.
The principle issue concerns whether the worker’s occupation of temporary accommodation at the side of the hospital in Sydney, where she intended to reside overnight and the following day before commencing duties, was a place of employment within the meaning of s 10(5).

BACKGROUND

Sally Fragar, the first respondent, has worked in the health industry as a registered nurse and midwife for many years. She is currently 56 years of age and lives at Perthville, New South Wales.
From 1992 until 2010, Ms Fragar worked at St Vincent’s Private Hospital, Bathurst, as a registered nurse. That hospital closed in September 2010, following which Ms Fragar obtained causal work through a nursing agency, Medistaff. She worked for Sydney Local Health District (the appellant), at Canterbury Hospital, and for the second respondent, Lithgow Community Private Hospital Ltd (LCPH) at Lithgow Private Hospital. The appellant is a body corporate constituted by s 17 of the Health Services Act 1997 (NSW), as specified in Sch 1. Pursuant to s 22(1)(c) of that Act the appellant may take proceedings and be proceeded against in its corporate name.
When working at Canterbury Hospital Ms Fragar was permitted to stay in one of the nurses’ units located at the side of the hospital, known as the Canterbury Hospital Residential Centre.
On 7 October 2010, Ms Fragar commenced her first day of work at LCPH, as a casual. She finished her rostered shift that day at approximately 5.30 pm. After finishing work that day Ms Fragar set out to drive to Sydney with the intention of staying overnight in the nurses’ units at Canterbury Hospital before commencing duties the next day at the hospital. Her shift was due to commence at that hospital on 8 October 2010 at 9.30 pm.
During the course of the journey, at approximately 7.30 pm, Ms Fragar stopped for coffee at the McDonald’s restaurant at Blaxland. As she left the restaurant and walked towards her vehicle, which had been parked in the McDonald’s car park, she fell. Ms Fragar suffered a fracture to her right elbow, as a result of which she was incapacitated from 7 October 2010 to 6 December 2010.
Ms Fragar made a claim for weekly compensation against both employers for injury to her right elbow. The insurers for both employers denied the claim.
The appellant’s insurer, Employers Mutual Ltd, disputed liability, amongst other reasons, on the ground that on 7 October 2010 Ms Fragar was not on a journey to commence work with the appellant that day and therefore the journey was not one to which s 10 of the 1987 Act applied. Although Ms Fragar was permitted use of the Canterbury Hospital Residential Centre, it was not a term or condition of her employment that she do so. It added that an injury sustained during a journey to the centre was not an injury arising out of or in the course of her employment.
LCPH’s insurer, CGU Workers Compensation (NSW) Ltd, disputed liability on the ground that Ms Fragar was journeying from her employment at LCPH to a place of employment with another employer (the appellant). Therefore Ms Fragar was deemed to be on a journey from her place of abode to her place of employment with that other employer, which rendered the appellant liable, pursuant to s 10(5) of the 1987 Act.
On 27 March 2013, Ms Fragar lodged an Application to Resolve a Dispute in the Commission against both employers. She claimed weekly compensation from 7 October 2010 to 6 December 2010 in respect of the injury to her right arm.
On 7 May 2014, the matter was listed for an arbitration hearing before a Commission Arbitrator, following which the Arbitrator reserved his decision.
On 9 May 2014, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. The Arbitrator found in favour of Ms Fragar against the appellant, on the basis that when Mr Fragar was injured she was on a periodic journey between her place of employment with LCPH to her place of employment with the appellant and was therefore deemed to be on a periodic journey from her place of abode to her place of employment pursuant to ss 10(1), 10(3)(a) and 10(5) of the 1987 Act.
The Arbitrator entered an award in favour of LCPH.
The appellant appeals the Arbitrator’s decision.

PRELIMINARY ISSUES

There is no dispute that the threshold requirements as to quantum and time as found in the provisions of sub-ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 9 May 2014, records the Arbitrator’s orders as follows:
“The Commission finds that:
1. On 7 October 2010 the applicant was injured on a periodic journey from a deemed place of abode to a place of employment and as a consequence of s.10(1), s.10(3)(a) and s.10(5), the personal injury she received on the journey is for the purposes of the Workers Compensation Act 1987, an injury arising out of and in the course of the applicant’s employment with the first respondent.
2. As a result of the injury the applicant was totally incapacitated for work from 7 October 2010 to 6 December 2010.
3. As a result of the injury it was reasonably necessary for the applicant to obtain medical and related treatment.
4. The Commission orders that:
(a) The first respondent is to pay the applicant $1,382 per week from 7 October 2010 to 6 December 2010 pursuant to s.36 (in its previous form).
(b) The first respondent is to pay the applicant’s section 60 expenses.
(c) The first respondent is to pay the applicant’s costs as agreed or assessed.
(d) Award in favour of the second respondent.
(e) Certify an uplift in costs for all parties of 15 per cent as a result of the complexity of the legal issues raised and the associated need to carefully research the historical authorities in s.10 matters.
A statement is attached to this determination setting out the Commission’s reasons for the determination.”

THE EVIDENCE

Ms Fragar

Ms Fragar provided a signed statement dated 27 January 2011. Ms Fragar stated that she performed an induction shift at LCPH on 7 October 2010. Through Medistaff, Ms Fragar also secured employment with the appellant.
Ms Fragar said (at [10]):
“my contact at Canterbury Hospital was Drew Kear, the ADON and the person in charge of staffing. I was allowed to stay in one of the nurse’s [sic] units they have at the side of the hospital, which was better than travelling home each day.”
Ms Fragar said (at [17]):
“once I finished work [the induction shift at LCPH] at 5.30pm, it was my intention to have something to eat and then drive to Canterbury Hospital. It was my intention that I would drive to the accommodation at the side of Canterbury Hospital and then start a shift at 9.30 pm on 8 October 2010.”
There is no dispute that after leaving Lithgow, Ms Fragar stopped at a Chinese restaurant in Katoomba and subsequently at the McDonald’s restaurant in Blaxland, where she fell in the car park and was injured.

Mr Kear

Mr Kear provided a signed statement dated 28 January 2011. Mr Kear stated that he is the operational nurse manager at Canterbury Hospital. At the time of Ms Fragar’s injury, Mr Kear was responsible for staffing at the hospital.

Mr Kear stated (at [4]) that he:
“first met Sally Fragar on the afternoon of 17 September 2010, given this is recorded as her first shift at Canterbury Hospital.
I would have seen Sally in person around 4 or 5 times over the two blocks of shifts she worked at this hospital. Sally is a midwife and we are short of midwives. On that basis I was interested in encouraging her to continue working at our hospital.”
Mr Kear added (at [7]):

“I am not sure who arranged the accommodation for Sally, which is located at the side of the hospital, however, given she lives in the Bathurst region, I was happy that this arrangement was in place. It might have been part of the arrangements through Medical Staff Pty Ltd.
It is my understanding that if a person is staying in a unit for 4 days then they will have the key to that room for that period of time. I understand that they then hand back the key and they book a room for the next period and is likely to have a different room. The actual facility is primarily used by surgical staff and people having to cover a late and then an early shift, etc.
I am not aware of any policy associated with the time frame as to when a person can take up a room prior to commencing her shift.”
Mr Kear said (at [12]) another issue that came up when he reviewed the information in Ms Fragar’s claim form was “that she had worked during the day at Lithgow Private Hospital and she indicated she was intending to travel to Canterbury to work possibly that night. I would not approve this, however, it can be difficult to monitor when an agency employee works for more than one agency”.
Mr Kear confirmed that anecdotal reports indicated that Ms Fragar was a good nurse.

THE LEGISLATION

Section 10 of the 1987 Act, as it stood at the time of the incident, provides:
“Journey claims
10 Journey claims
(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,

…

(e) a journey between any camp or place:
(i)where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or
(ii)where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment, and the worker’s place of abode when not so residing,

…

(5) For the purposes of this section, if the worker is journeying from the worker’s place of employment with one employer to the worker’s place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer.

(6) In this section:

…
place of abode includes:

(a)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 ARBITRATOR’S REASONS

The Arbitrator found that Ms Fragar was injured during the course of a journey between her place of employment with LCPH and her place of employment with the appellant, she was injured during the course of a periodic journey to which s 10(5) of the 1987 Act applies. Section 10(3)(e) did not apply, in the circumstances of this case, as it is concerned with a journey between the worker’s place of abode and a “camp or place”.
Where the injury is sustained during a journey from a worker’s place of employment with one employer to the worker’s place of employment with another employer, the worker is deemed, by the operation of s 10(5), to be journeying from his or her place of abode to his or her place of employment with that other employer.
The issue was whether Ms Fragar was travelling to a place of employment within the meaning of s 10(5), in circumstances where the evidence revealed she was travelling to the nurses’ accommodation at “the side of the hospital” prior to commencing her shift the following evening.
Ms Fragar was due to arrive at the nurses’ accommodation on the evening of 7 October 2010 but was not due to commence duties at Canterbury Hospital until 9.30 pm on 8 October. Therefore having some 12 hours or so of uncommitted time after waking on 8 October and before commencing her shift, the issue was whether her occupation of the unit was occupation as a place of employment or merely as a place of abode.
The Arbitrator found (at [8] of the Reasons):
“As it was obviously not viable to commute home to Perthville after she had finished a typical shift, the first respondent arranged for the applicant to be provided with accommodation in a ‘unit’ which was ‘located at the side of the hospital’. The first respondent’s Operational Nurse Manager was aware of this arrangement and was ‘happy that this arrangement was in place’. The units were booked by appropriate hospital staff, such as the applicant, for particular periods of time (Exhibit A p.102).”
In Toner v Leconfield Colliery [1961] 35 WCR 101 (Toner), the Court of Appeal dealt with a claim involving a worker who was injured whilst travelling to the colliery where he worked and where he was to temporarily reside before commencing duties the following day. Brereton J (Wallace J agreeing, Owen J dissenting) held (at 106) that whether the worker was travelling to his place of employment or to a place of abode was a question of fact and degree. The plurality held that the worker’s journey was to his place of employment notwithstanding the fact that the worker intended to sleep in a room on the colliery’s premises overnight before commencing duties the next morning.
Her Honour Judge Quirk reached the same conclusion in Hitchick v Riverina Health Service [2000] NSWCC 34; (2000) 20 NSWCCR 12 (Hitchick). The facts were not dissimilar to those in Toner. Her Honour noted the remarks of Jordan CJ in Commissioner of Railways v Conners [1945] 19 WCR 56 (Conners) where his Honour held (at 56) “[a] particular place may be both a place of employment and a place of abode. This is obviously so in the case of a maid living in”.
The Arbitrator, in the present matter, concluded (at [45]):
“I do not think the period of ‘free’ time is sufficient to bring about the degree of temporal separation Brereton J was contemplating such as to change the characterisation of the accommodation unit to only being a place of abode as opposed to being both a place of abode and a place of employment. In context it is a short period during which a nurse would largely need to rest - to prepare for the coming all night shift.”
The Arbitrator found (at [46]):
“…that on 7 October 2010, the applicant was injured on a periodic journey from a deemed place of abode to a place of employment, and as a consequence of s 10(1), s 10(3)(a) and s 10(5), the personal injury she received on the journey, is for the purposes of the Workers Compensation Act 1987, an injury arising out of, and in the course of, the applicant’s employment with [the appellant].”
In light of the forgoing finding, the Arbitrator concluded it was unnecessary to consider whether the journey in question might also have come within the type of journey described in s 10(3)(e).

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred in fact by finding that:
(a)     it was a term and condition of Mr Fragar’s employment that she be provided with temporary accommodation;
(b)     Ms Fragar was on a journey to her place of employment, because the accommodation was at the side of Canterbury Hospital (at [36] and [38] of the Reasons), and
(c)     the 12 hour period, prior to commencing her shift, was not a period of convenience for the worker.
Further, the appellant alleges that the Arbitrator erred in law by finding that:
(a) the unit at the side of Canterbury Hospital was a place of employment as envisaged by s 10(5) of the 1987 Act (at [46]), and
(b) it was unnecessary for him to consider whether the journey might be of a type as described in s 10(3)(e) (at [47]).

SUBMISSIONS

The appellant’s submissions

Ms Fragar’s use of the unit at the side of Canterbury Hospital was not a term or condition of her employment with the appellant. It was an arrangement whereby Mr Fragar was permitted to occupy the unit as a matter of convenience. The Arbitrator’s finding (at [8] of the Reasons) that Ms Fragar was “provided with accommodation” is factually incorrect. Her occupancy of the unit was at her request and at her convenience. There was no inducement on the part of the appellant for her to use the unit.
No explanation was offered as to why Ms Fragar chose to drive at night to Sydney at the end of her shift at LCPH, whilst presumably tired, nor why she did not simply return to her home and drive to Sydney the next day, when fresh, given that she had some 27 hours prior to commencing her shift with the appellant. It was viable, contrary to the Arbitrator’s finding (at [8]), for the worker to return home before travelling to work at the appellant, after completing her shift at LCPH.
The Arbitrator’s mistaken belief that Ms Fragar’s occupancy of the unit was being “provided” by the appellant, led him to conclude that the end point of Ms Fragar’s journey, was to her place of employment, rather than simply, her place of abode.
The unit at the side of the hospital, whilst in close proximity to where the worker was to commence employment, was nevertheless, not her actual place of employment, and for this reason, her injury did not occur on a journey contemplated by s 10.
The facts in the present case can be distinguished from those in Hitchick, the most obvious distinction being that the worker in Hitchick made the journey regularly on a Sunday night, with a view to starting work the next morning, a journey of about three hours. Further, the room she occupied was one which she regularly occupied and in which she kept her clothing. It was a regular journey that fitted with the pattern of that worker’s employment, which is not a feature in the present case.
Whilst the end point of Ms Fragar’s journey was a dwelling on the appellant’s grounds, that does not of itself characterise the journey as a journey to Ms Fragar’s place of employment. It is merely one indicia which may or may not lead to such a conclusion.
There being at least some 12 hours of waking time before Ms Fragar’s shift was due to commence most clearly distinguishes the facts in the present matter from those in Hitchick. How Ms Fragar intended to spend that time is irrelevant. It is the period of time itself that is relevant to whether or not her journey should be categorised as to a place of employment, or a place of abode.

The Arbitrator erred in finding it was unnecessary for him to consider the application of s 10(3)(e)(ii). The question of whether the end point of Ms Fragar’s journey can be classified as a temporary residence for any purpose of her employment was considered in Gabi Duta Pty Ltd t/as Gabi’s Agricultural Labour Services v Caldaras [2008] NSWWCCPD 61 (Gabi Duta).
The only reason Ms Fragar intended to take up temporary residence in the nurses’ unit at Canterbury Hospital was for her personal convenience and not for any purpose of her employment.
In support of the submission dealing with the application of s 10(3)(e) the appellant submitted that the necessity or convenience referred to in the sub-s must be dictated by some circumstance of the particular employment and not merely for the worker’s convenience: Broken Hill Pty Co LtdvHofman (1956) WCR 129.
As there was no inducement, on the employer’s part, for the worker to reside temporarily in the nurses’ unit, she should not succeed in establishing that she was on a journey contemplated by s 10 (Gabi Duta).

Ms Fragar’s submissions

Ms Fragar submits that the Arbitrator made no error in the findings of fact. The Arbitrator did not make a finding that the provision of accommodation at Canterbury Hospital was a condition of employment.
The appellant challenges what it says is a legal finding, that the unit at the side of Canterbury Hospital was a place of employment, as opposed to a place of abode. That finding was a finding of fact. The determination of that fact was subject to a judgment as to fact and degree. In making that determination, the Arbitrator was bound to exercise a discretion. The Arbitrator did not err in the exercise of that discretion.
Further, the appellant challenges the Arbitrator’s finding, that it was not necessary to consider whether the journey might fall within s 10(3)(e)(ii). The Arbitrator was not required to examine the applicability of every sub-s of the Act. In any event, had the Arbitrator done so, he would have found that LCPH would have been successful upon that ground.
A finding as to “place of employment” is not a question of law, it is a question of fact. The words “place of employment” are ordinary words and their meaning is a question of fact: Parsons Brinckerhoff Australia Pty Ltd v Vanceva [2011] NSWWCCPD 72 at [34].
In challenging the exercise of the Arbitrator’s discretion in terms of his factual findings, the appellant must confront the principles as to discretionary judgment set out in House v The King [1936] HCA 40; 55 CLR 499 at 504–505.
There can be no question that the appellant came to an arrangement to furnish or supply accommodation. The Macquarie Online Dictionary definition of “arrange” is “to come to an arrangement or understanding regarding; to prepare or plan…”. Whether there was any inducement by the appellant concerning the occupation of the nurses’ unit is irrelevant.
The Arbitrator correctly applied the conclusions of Bereton J in Toner. Whether there was sufficient temporal separation to characterise the accommodation as a place of employment was a question of fact and degree. It was a classic discretionary finding. The Arbitrator’s finding that in context, the period in which Ms Fragar occupied the nurses’ unit, was a short period, which a nurse would largely need to rest to prepare for the coming all-night shift. That finding of fact has not been challenged and was clearly available on the evidence.
The facts in this case are factually similar to Gabi Duta. For the reasons discussed in Gabi Duta, the Arbitrator was entitled to find that Ms Fragar was on a journey between a place, where it was reasonably necessary or convenient, that the worker reside temporarily for any purpose of her employment (being the unit at the hospital) and the worker’s abode.
In the event that the Commission should find that the Arbitrator was in error, in not taking s 10(3)(e)(ii) into account, it should determine the matter afresh on the basis set out above, or alternatively, the matter should be remitted back to the Arbitrator.

LCPH’s submissions

The finding that the unit at the side of the hospital was a place of employment, as opposed to a place of abode, was a finding of fact. It involved the exercise of discretion by the Arbitrator. The Arbitrator did not err in the exercise of that discretion.
The Arbitrator accepted (at [46] of the Reasons) that in travelling to the accommodation at Canterbury Hospital, Ms Fragar was travelling to her place of employment. That was consistent with the worker’s evidence.
The Arbitrator correctly relied on Hitchick as authority for the proposition that a particular place may be both a place of temporary abode and a place of employment.
It was not relevant whether the accommodation provided for Ms Fragar was provided as a term and condition of her employment. The Arbitrator’s findings did not depend on that factual issue.
How the worker intended to spend the interval before commencing work is not relevant. The relevant factor is whether the intention was to attend a place of employment or attend a place of abode. The test to be applied is one of degree and fact (Toner, per Brereton J). The Arbitrator’s findings on that question were within the ambit of his discretion and his discretion was correctly applied.
If the Arbitrator erred by failing to consider the application of s 10(3)(e), it does not assist the appellant in any event. If the section was applied, then the question arises as to whether Ms Fragar was staying at the accommodation “for any purpose of the worker’s employment” or whether it was merely to suit the worker’s convenience. The evidence of Mr Kear supports the finding that the provision of temporary accommodation had an employment purpose, in that it enables staff to sleep in circumstances which enable them to more readily perform consecutive shifts. In that sense, Ms Fragar was attending the temporary accommodation for an employment purpose, rather than for her own purpose.
For these reasons the Arbitrator’s orders and findings should not be disturbed.

DISCUSSION AND FINDINGS

The appellant’s submission that the Arbitrator erred by finding that it was a “term and condition” of Ms Fragar’s employment that she be provided with temporary accommodation is misconceived and I reject it. The Arbitrator did not make a finding that the provision of the accommodation was a “term and condition” of her employment. He found (at [8] of the Reasons) that Ms Fragar was “provided” with accommodation in a unit located at the side of the hospital. At the hearing of the appeal, counsel for the appellant, Mr Grant, conceded that there was an arrangement in place between Ms Fragar and the appellant, whereby she was permitted the use of accommodation in the nurses’ units at the side of Canterbury Hospital, from time to time. That finding was consistent with Mr Kear’s evidence (see [24] above) of such an “arrangement”.
The appellant’s submission that it was feasible for Ms Fragar to have undertaken the journey from her place of abode near Bathurst, to Canterbury Hospital on 8 October 2010, prior to commencing her shift, rather than undertaking the journey on 7 October 2010 is not to the point. The issue before the Arbitrator was whether the journey Ms Fragar was undertaking, at the time she was injured, was one that falls within the provisions of s 10 of the 1987 Act.
The first question is, was the accommodation at the side of the Canterbury Hospital a place of employment? In Conners, Jordan CJ held (at 56): “a particular place maybe both a place of employment and a place of abode. This is obviously so in the case of a maid who is living in”.
In Toner, Brereton J held (at 106):
“I can find nothing in the Act or any decided case to suggest that if a worker’s place of employment is itself also a place of abode, a journey from his home thither, cannot for that reason, be regarded as being from a place of abode to a place of employment, and must be regarded from one place of abode to another.”
It is implicit, from a reading of the Arbitrator’s decision as a whole, that he was satisfied that the nurses’ unit to be occupied by Ms Fragar was both a place of abode and a place of employment pursuant to s 10(5) (see [35] above).
There was ample evidence to support the Arbitrator’s conclusion that the nurses’ accommodation was both a place of employment and a place of abode. First, the appellant had control over the occupation of the nurses’ units. The occupation of the units was restricted to staff needing temporary accommodation either prior to a shift or between shifts. The appellant determined, on application from an employee, when and for how long the units could be occupied. Access to the units was by means of a key, which was issued by the appellant. There would seem to be no dispute that the units, although being described as being at the side of the hospital, are situated on premises owned and occupied by the appellant.
Mr Grant conceded at the hearing of the appeal (at T15.15) that, if the facts had been that Ms Fragar left home to travel to Canterbury Hospital nurses’ units at say midday or 1 pm on 8 October 2010, given that the journey takes between three and three and a half hours, thereby arriving at the hospital around 3.30 to 4 pm, there would be no issue that s 10 would be satisfied.
The real issue in this case is whether the Arbitrator erred in finding that the period of 12 hours or so available to the worker, between rising on the morning of 8 October 2010 and commencing duties at the appellant at 9.30 pm that night, was not a sufficient period of time to bring about the degree of temporal separation such as to change the characterisation of the occupation of the nurses’ unit from being both a place of abode and a place of employment to be a place of abode only. The determination of that issue was a question of fact and degree.
In Australian Air Express Pty Ltd v Langford[2005] NSWCA 96 at [15], McColl JA considered the approach an appellate court should take to reviewing an exercise whose resolution is “one of ‘fact and degree’ in respect of which views might legitimately differ”: Roy Morgan Research Ltd v Commissioner of State Revenue(1997) 37 ATR 528 at 533. Her Honour said (at [15]) that:
“it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue(2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”
The Arbitrator’s consideration of the characterisation of Mr Fragar’s occupation of the nurses’ unit was guided by Justice Brereton’s remarks in Toner (at 106) where his Honour held:
“Notwithstanding that in the present case temporary place of abode was not spatially separate from the place of employment, it is argued in effect that it was separate in point of time; and that, in so far as the worker was travelling to arrive long before he was due to start work, with the intention of sleeping there first, it was to the place in its character, as a place of abode and not in its character as a place of employment, that he was going.
This is to my mind again a question of degree and of fact. Had he planned to arrive several days before he was due to start work, the answer would perhaps be one way: if he was due to arrive half an hour before starting time, perhaps the other.”
The only evidence concerning Ms Fragar’s occupation of the nurses’ unit on the day in question was her evidence that after finishing work at LCPH at about 5.30 pm, it was her intention to have something to eat and then drive to the accommodation at the side of Canterbury Hospital prior to starting her rostered shift at 9.30 pm on 8 October 2010 (see [20] above). That evidence was unchallenged and no other evidence was presented to suggest that her planned occupation of the unit that day was for reasons unconnected with her employment.
Based on the totality of the evidence the Arbitrator concluded that the period of “free” time, as he described it, prior to Ms Fragar’s commencing her shift at Canterbury Hospital was insufficient to bring about the degree of temporal separation Brereton J was contemplating in Toner. He found that that period of time was insufficient to change the characterisation of the nurses’ unit to only be a place of abode rather than both a place of abode and a place of employment.
The Arbitrator found, in context, that it was a short period during which a nurse would largely need to rest to prepare for the coming all night shift. That finding was open on the evidence and discloses no error. Even if a Presidential member may have come to a different conclusion on appeal, which is what the appellant is essentially urging, the Commission cannot interfere with the Arbitrator’s determination on appeal unless error has been demonstrated. I should add that, even if the appeal was a hearing de novo, I would have reached the same conclusion as that reached by the Arbitrator.
Mr Grant argued that the decision in Hitchick can be distinguished from the facts in the instant case. In Hitchick the worker was injured on a Sunday evening whilst driving from her usual place of abode in Canberra to Temora Hospital where she was employed Monday to Friday during which times she stayed in the nurses’ home located on the hospital grounds. The distinguishing feature is that the worker in Hitchick was due to start work the following morning, whereas in the instant case there was a period of many hours between the time Ms Fragar was due to arrive at the nurses’ unit and when she was due to commence her shift at the appellant. Her Honour, Judge Quirk, in Hitchick determined that the worker’s occupation of the nurses’ home was a place of employment after applying the principles in Connor and Toner.
The distinguishing facts between Hitchick and the instant case are of no consequence. The Arbitrator correctly applied the dictum of Brereton J in Toner to determine whether the degree of temporal separation between the time Ms Fragar was due to arrive at the nurses’ unit and the time she was due to commence her shift was sufficient to change the characterisation of the nurses’ unit from being a place of abode and a place of employment to only being a place of abode. His approach and conclusion discloses no error.
Having found that Mr Fragar was entitled to succeed pursuant to ss 10(1), 10(3)(a) and 10(5), the Arbitrator was not required to consider the application of s 10(3)(e)(ii) and his failure to do so does not constitute an appealable error.
Mr Grant’s submissions with respect to the application of s 10(3)(e)(ii) are misconceived and I reject them. Section 10(3)(e)(ii) has no application to this case. It applies to a “journey between any camp or place” – (1) where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or, (2) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment and the worker’s place of abode when not so residing.
At the time Ms Fragar was injured she was not on a journey between “any camp or place” where she was required to reside temporarily and her place of abode when not so residing. She was, as the Arbitrator correctly found, on a journey from a place of employment with one employer to a place of employment with another employer. That was so notwithstanding that the second place of employment was also, for a period of time, also a place of abode.

CONCLUSION

Ms Fragar was injured during the course of a journey between two places of employment to which s 10(5) of the 1987 Act applies. Her intended occupation of temporary accommodation, namely a nurses’ unit located at the side of the hospital where she was due to commence duties, was both a place of employment and a place of abode. Her occupation of the unit for in excess of 12 hours before commencing duties did not destroy the characterisation of the unit as a place of employment.

DECISION

The Arbitrator’s determination of 9 May 2014 is confirmed.

COSTS

The appellant is to pay the first and second respondents’ costs of the appeal.

Judge Keating
President

11 September 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2014] NSWWCCPD 59

29 August 2014 11 September 2014