Taylor v State of Tasmania
[2002] TASSC 118
•18 December 2002
[2002] TASSC 118
CITATION: Taylor v State of Tasmania [2002] TASSC 118
PARTIES: TAYLOR, Garry
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 88/2002
DELIVERED ON: 18 December 2002
DELIVERED AT: Hobart
HEARING DATES: 22 November 2002
JUDGMENT OF: Blow J
CATCHWORDS:
Workers Compensation - Employment risks - "Arising out of and/or in the course of the employment" - Presence at place of employment - Tasmania - What constitutes place of employment.
Workers Rehabilitation and Compensation Act1988 (Tas), s25(5).
Aust Dig Workers Compensation [11]
REPRESENTATION:
Counsel:
Appellant: S J Cooper
Respondent: P Turner
Solicitors:
Appellant: Ogilvie Jennings
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 118
Number of Paragraphs: 14
Serial No 118/2002
File No LCA 88/2002
GARRY TAYLOR v STATE OF TASMANIA
REASONS FOR JUDGMENT BLOW J
18 December 2002
This is an appeal from a determination of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). The appellant had driven home during his lunch break, had driven back to return to work, had parked his car, and was walking from his car to the point where he proposed to resume his work, when he fell and was injured. The Tribunal dismissed his application for compensation, on the basis that he was not at his "place of employment" when he was injured. The appellant contends that he was at his "place of employment".
The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s25(1) provides that if, in any employment, a worker suffers an injury, his employer is, subject to certain exceptions of no present relevance, liable to pay compensation in accordance with the Act to the worker. There is a deeming provision, of critical significance in this case, in s25(5), which reads as follows:
"(5) Without limiting subsection (1), but subject to subsections (1A) and (2), an injury arises out of and in the course of a worker's employment if the injury occurs during attendance at the worker's place of employment on a working day."
The critical question in this case is whether the appellant, at the time of his injury, was inside or outside the boundaries of his place of employment. He was employed as a "House Services Assistant" at the Launceston General Hospital. That meant he did cleaning work and collected rubbish. The hospital's main building is on the west side of Charles Street, between Howick Street (to the south) and Frankland Street (to the north). However the hospital complex includes other buildings, car parks and grounds on the east side of Charles Street and, further east than that, on the south side of Howick Street. On each working day, the appellant routinely did most of his work in the main building, but routinely visited other parts of the complex to collect rubbish. These included parts of the complex on the east side of Charles Street. His injury occurred in the grounds on the east side of Charles Street after he had parked his car in a car park in those grounds, and was walking across a grassed area to return to the main building. His routine duties did not require him to visit that grassed area. He normally attended the buildings on the east side of Charles Street only during the first hour of each working day, between 8am and 9am, to collect bags of rubbish. Thereafter, he worked in the main building, occasionally taking rubbish to a compactor, elsewhere in the hospital complex.
In the reasons for his determination, the learned Commissioner referred to a number of cases as to the meaning of the term "place of employment" which concerned workers who did not routinely work at a definable place, including a forest ranger injured whilst on standby (Wilkinson v Forestry Commission [1986] Tas R (NC 1), A47/1986), a road worker (Nichols v Attorney-General [1950] Tas SR 54), and a travelling insurance salesman (Van Oosterom v Australian Metropolitan Life Assurance Co Ltd [1960] VR 507). The reasoning which led him to dismiss the appellant's application appears in the followings paragraphs from his reasons:
"11 It is clear from the above authorities that one needs to look at the area in which the worker suffered his injury in light of the terms of the worker's employment. I determined that the area was not an area where the worker would be expected to be in the normal performance of his duties, nor was his attendance in that area in any way in pursuance of that contract of employment or for any reason incidental or ancillary to it.
12 When one considers the spatial limits, then clearly as the worker's duties for the majority of his working day were confined to the hospital building and its immediate environs located on the opposite side of Charles Street from where he suffered his injury, this area was his place of employment during that time. His place of employment extended to encompass other areas if at any time during the day he was in those areas in pursuance of his employment or incidental [sic] to that employment. For example, whilst he was on his collection run in the motor vehicle each morning to the adjoining sites. However that extended area was only his place of employment when he was at those areas pursuant to or incidental [sic] to his employment. The mere fact that he might visit an area external from his normal place of employment on one or more occasions in the course of his employment each day did not mean that those other areas became for all purposes part of his place of employment (Clissold v Country Roads Board.)" [[1981] VR 259.]
13 Based on the facts outlined I cannot accept that the area where the worker parked his car and more importantly, the location on the grassed area where he fell can be said to be in normal circumstances his place of employment. These are open areas to which the public had access and to which I infer the employer sought to exercise no particular control. There was no more reason for the worker to be in the area where he suffered his injury as a member of the public who might have used the same parking area and was making their way to the hospital to visit a patient. This situation was quite different from the other side of Charles Street where the evidence is that the parking areas in the environs of the hospital were controlled by the employer. There is no suggestion that the parking area used by the worker was in any way provided for or offered by the employer to employees generally or specifically to the worker to be used for parking purposes. Save insofar as it was an area adjacent to the hospital and contained some buildings which still contributed to the functioning of the hospital, there was nothing to link the parking area and the accident site with the hospital. I note that in this area there were also other buildings in which activities were conducted that apparently bore no link to the functioning of the hospital. Presumably people associated with activities in those buildings were also free to park in the area in which the worker parked and also transverse [sic] the grassed area where his accident happened."
It is clear from the passage I have quoted that the learned Commissioner approached the question of what constituted the appellant's place of employment on the basis that the appellant's duties were such that he could have a different place of employment at different times during a working day. Counsel for the appellant submitted that, on the facts of this case, such an approach involved an error of law.
The ancestry of s25(5) can be traced back to a 1948 amendment to the Workers' Compensation Act 1927. It was amended by the Workers' Compensation Act 1948, which inserted a new s5(3A), which read as follows:
"(3A) without limiting the generality of the provisions of subsection (1) but subject to the provisions of subsection (2), an injury by accident to a worker shall be deemed to arise out of and in the course of the employment if the accident occurs ¾
i While the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment is present at his place of employment: or
ii While the worker is travelling between his place of residence or place of employment and any trade, technical, or other training school which he is required to attend by the terms of his employment or as an apprentice, or which he is expected by his employer to attend, or is in attendance at any such school."
As can be seen, this was an amendment intended to benefit workers. A worker injured at his or her place of employment no longer bore the onus of proving that the injury arose out of and in the course of his or her employment. That would be deemed to be the case. Subject to exceptions concerning serious and wilful misconduct and intentional self-inflicted injuries, all workplace injuries were made compensable, even when they had nothing to do with the worker's duties, though the new provision was interpreted as not applying to injuries when a worker returned to his or her place of employment for private purposes: Nichols v Attorney-General (supra); Carbis v Bounceball Pty Ltd [1972] VR 211 at 218. Further, for the first time in Tasmania, journey injuries were made compensable, but only if the journey was for the purpose of attending some sort of training school that the worker was required or expected to attend. Injuries at a training school were also covered.
A series of subsequent amendments, many of them referring to the "place of employment", extended the scope of workers compensation cover. The Workers' Compensation Act 1955 expanded s5(3A) by adding the following paragraph:
"iii While the worker is travelling between his place of residence and his place of employment on or in any vehicle ¾
(a) Belonging to or hired by his employer and used: or
(b) Used under contract with his employer,
for the conveyance of workers to and from their places of employment."
The Workers' Compensation Act 1964 extended s5(3A) further, to cover injuries "While the worker is travelling to his place of employment from his place of residence", without any restriction as to vehicles. The protection afforded in 1964 to workers travelling to work was extended in 1966 to workers travelling home again. The Workers' Compensation Act 1966 substituted a new s5(3A)(d) which extended the subsection's operation to injuries "While the worker is travelling, in either direction, between his place of employment and his place of residence."
The 1927 Act was repealed and replaced by the Workers Compensation Act 1988 (as the Act was then named). From the time of its enactment until the substitution of the present s25(5) in 1995, the original s25(5) read as follows:
"(5) Without limiting the generality of the provisions of subsection (1) but subject to the provisions of subsection (2), an injury, not being a disease, to a worker shall be deemed to arise out of and in the course of his employment if the injury occurs ¾
(a)while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment is present at his place of employment;
(b)while the worker, having on any working day attended at his place of employment, is temporarily absent from that place on that day during any recognized break for meals, not being a short break intended for rest, smoking, or the taking of light refreshment;
(c)while the worker is travelling in either direction between his place of residence or place of employment and any trade, technical, or other educational or training school or institution which he is required to attend by the terms of his employment or as an apprentice or trainee or which he is expected by his employer to attend, or is in attendance at any such school or institution; or
(d)while the worker is travelling in either direction between his place of employment and his place of residence."
The Workers Rehabilitation and Compensation Reform Act 1995 amended s25 so as to deny compensation for many classes of journey injuries that had previously been compensable. That Act inserted the present s25(5), which I have already quoted, and substituted a new s25(6), which contained a number of references to a worker's "place of employment". That subsection reads as follows:
"(6) For the purposes of this section, an injury does not arise from a worker's employment if it occurs ¾
(a)while the worker is travelling in either direction between the worker's place of residence and the worker's place of employment, except where that journey occurred ¾
(i)at the request or direction of the employer; or
(ii)if the journey is work related, with the authority (expressed or implied) of the employer; or
(b)while the worker is travelling between places where the worker is employed by different employers; or
(c)while the worker, on a working day, is temporarily absent from the worker's place of employment, except where that absence occurs at the request or direction, or, if it is work related, with the authority (expressed or implied), of the employer; or
(d)during a social or sporting activity which takes place away from the worker's place of employment, except where the worker's involvement in that activity forms part of the worker's employment or is undertaken at the request or direction, or with the authority (expressed or implied), of the employer."
It can be seen from this excursion into the history of the legislation that, for decades, when Parliament has spoken of a worker's "place of employment", it has been talking about the place that a worker goes to at the beginning of a working day, works at throughout the working day, and goes home from at the end of a working day. That is certainly how the term "place of employment" is used in s25(6). There is no reason to think that Parliament intended the expression "place of employment" to have a different meaning in s25(5). In wording the legislation, Parliament seems to have had in mind a stereotypical worker who travels to and from the same factory, shop or office each day. Difficulties have arisen in applying the words of provisions like s25(5) to workers whose jobs require them to move around, like the forest ranger, road worker, and insurance salesman referred to in the cases considered by the learned Commissioner. I do not think such cases shed much light on the intended meaning of the legislation. They are more concerned with the difficulties that arise in applying the legislation to employees with atypical working arrangements.
Having regard to the sense in which the term "place of employment" has been used in s25(5) and (6) and their predecessors, particularly in conjunction with the expression "working day", I think Parliament intended the words "place of employment", when used in relation to a worker who routinely works on the same premises or in the same area each working day, to mean the premises or area within which that worker works each working day. I do not think there was any scope for the learned Commissioner to take the view, on the facts of this case, that the appellant's place of employment might include an area east of Charles Street in the morning, but not in the afternoon. I think he made an error of law in treating the term "place of employment" as possibly including different areas at different times on the day of the appellant's injury.
Mr Cooper submitted on behalf of the appellant that, as a matter of law, the learned Commissioner was obliged to hold that the point where the appellant was injured was within his place of employment. The meaning or definition of the term "place of employment" involves a question of law, but the question of what constitutes a worker's place of employment on a particular day (ie, where its boundaries are) is a question of fact. A large employer might occupy a site that covers a very large area, perhaps even with public streets passing through it. In such a case, difficult questions of fact might arise as to the boundaries of a particular worker's place of employment. If, for example, a university occupies a large campus with public streets passing through it, the whole campus might be the place of employment of the vice-chancellor, but a lecturer in a particular faculty whose duties would never take him or her outside that faculty's building might have a substantially smaller place of employment. The place of employment of a nurse working solely within the main building of the Launceston General Hospital might not include the compactor area, the laundry, or the boiler house. Similar questions of fact have arisen in past cases concerning journey injuries when it has been necessary to determine whether injuries were suffered inside or outside the boundaries of workers' places of residence. See, for example, Mersey Public Hospitals Board v McLennan [1987] Tas R 27; Re Grundy and Australian Postal Corporation (1992) 14 AAR 526. In some cases courts and tribunals have applied a "property boundary test", but in others they have applied a "building exit test". In some jurisdictions the applicable legislation has been amended to enshrine one of those tests, but that has been done in Tasmania only in relation to the definition of "place of residence", and not in relation to the definition of "place of employment".
The appellant's evidence was that in the mornings he routinely collected bagged rubbish from three points in the hospital grounds east of Charles Street ¾the boiler house, the laundry, and the accommodation hostel. He said he collected this rubbish in a vehicle and then drove it to the compactor. A plan of the hospital site was tendered as an exhibit. It is apparent from that plan that the car park where the appellant parked shortly before his injury is alongside the most sensible route between the boiler house and the compactor. The appellant's place of employment must have included the boiler house, laundry and accommodation hostel on the east side of Charles Street, and the internal roadways linking them with Howick Street, and thus with the compactor. His place of employment must also have included the main building on the west side of Charles Street. I think any attempt to draw the boundaries of the appellant's place of employment on the plan of the complex that was tendered as an exhibit in such a way as to include the areas I have referred to, but exclude the area where the appellant was injured, would result in an absurdity. The appellant's duties took him all over the Launceston General Hospital complex. Given that the area constituting his place of employment remained the same throughout his working day, I think the only proper decision the Tribunal could have made on the evidence before it was that the place where the injury occurred was within that place of employment.
I understand from the submissions of counsel that the only question in dispute was whether the appellant was at his place of employment when he was injured. It is therefore not necessary for me to remit the matter to the Tribunal. I order that the order of the Workers Rehabilitation and Compensation Tribunal made on 19 September 2002 be set aside and that the respondent pay the appellant weekly payments of compensation and the cost of any benefits payable under the Workers Rehabilitation and Compensation Act 1988, Div2 of PtVI, in respect of his claim for compensation made on 28 April 2002 in respect of an injury suffered by him on 24 April 2002.
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