Vetter v Lake Macquarie City Council [2001] HCA 12 8 March 2001 S27/2000
ORDER
1. Appeal allowed with costs.
2.Set aside orders 1, 2, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 16 April 1999.
3.Order that the matter be remitted to the Compensation Court of New South Wales for retrial limited to the question of fault under s 10(1A) of the Workers Compensation Act 1987 (NSW) and that otherwise the appeal to the Court of Appeal be dismissed with costs.
4.Costs of the proceedings in the Compensation Court to be determined by the judge at retrial.
On appeal from the Supreme Court of New South Wales
Representation:
R C Kenzie QC with I D M Roberts for the appellant (instructed by Hunt & Hunt)
D F Jackson QC with A G Bell for the respondent (instructed by Palmieri Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Vetter v Lake Macquarie City Council
Workers' compensation – Journey – Workers Compensation Act 1987 (NSW) – Compensation for worker injured on journey from work to place of abode – Worker travelling home after stopping for a meal with a relative – Whether deviation or interruption to the journey.
Workers' compensation – Practice and procedure – Compensation Court Act 1984 (NSW) – Appeal to Court of Appeal on a point of law only – Powers of the Court of Appeal.
Words and phrases – "journey" – "direct route" – "fault" – "place of abode".
GLEESON CJ, GUMMOW AND CALLINAN JJ. This appeal requires the Court to construe sections of the Workers Compensation Act 1987 (NSW) ("the Act") and of the Compensation Court Act 1984 (NSW) relating to the ambit of a worker's journey from her place of work to her home and the nature of an appeal from the Compensation Court to the Court of Appeal.
Case History
On 1 June 1993 the appellant was working for the respondent as an accounts clerk. Her place of residence was 38.9 kilometres from her workplace, a journey by car, her usual means of travel, of about 45 minutes or so. The appellant had adopted a practice of calling upon her grandmother fortnightly after leaving work and before travelling to her place of residence. The practice was a regular one from which she departed very rarely, if at all. In order to call upon her grandmother the appellant was obliged to travel about 19 additional kilometres further than she would if she were to travel directly to her home.
On 1 June 1993 she undertook one of such visits to her grandmother at Belmont.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Vetter v Lake Macquarie City Council [2001] HCA 12
Case
[2001] HCA 12
Decision Date
CaseChat Overview and Summary
This appeal concerned a worker, Ms Natalie Vetter, who was injured in a motor vehicle accident while travelling home from her employment with Lake Macquarie City Council. The dispute centred on whether her injuries were compensable under the *Workers Compensation Act 1987* (NSW), specifically whether the journey home, which included a private visit to her grandmother for dinner, constituted a "journey" as defined by the Act, or if it involved a disqualifying deviation or interruption. The matter came before the High Court of Australia following an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales.
The High Court was required to determine several legal issues. Firstly, it needed to consider whether the worker's stop for dinner with her grandmother constituted a deviation or interruption to her journey home from work, thereby affecting her entitlement to compensation. Secondly, the Court had to examine the powers of the Court of Appeal when hearing an appeal from the Compensation Court of New South Wales on a point of law only, particularly in relation to the findings of fact made by the primary judge. Finally, the Court considered the application of section 10(1A) of the *Workers Compensation Act 1987* (NSW) concerning the worker's fault contributing to her injuries.
The High Court allowed the appeal, setting aside certain orders of the Court of Appeal. The Court reasoned that the Court of Appeal had erred in law in its consideration of the "fault" provisions under section 10(1A) of the *Workers Compensation Act 1987* (NSW). While acknowledging that the worker's journey involved a deviation for a private purpose, the High Court found that the Court of Appeal had applied an incorrect legal test regarding the employer's burden of proof for establishing fault. The matter was remitted to the Compensation Court for a retrial limited to the question of fault under section 10(1A), with the Court of Appeal's dismissal of other aspects of the appeal being upheld.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside orders 1, 2, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 16 April 1999.
3. Order that the matter be remitted to the Compensation Court of New South Wales for retrial limited to the question of fault under s 10(1A) of the Workers Compensation Act 1987 (NSW) and that otherwise the appeal to the Court of Appeal be dismissed with costs.
4. Costs of the proceedings in the Compensation Court to be determined by the judge at retrial.
Background
Background to the litigation
This appeal[41] concerns the meaning and application of the Workers Compensation Act 1987 (NSW) ("the Compensation Act") and the Compensation Court Act 1984 (NSW) ("the Court Act"). In issue are the entitlements to compensation of a worker, injured on a journey, and the powers of the Court of Appeal deciding an appeal from an award entered by the primary judge in favour of the worker in the Compensation Court of New South Wales ("the Compensation Court").[41]From a judgment entered by the New South Wales Court of Appeal: Lake Macquarie City Council v Vetter (1999) 18 NSWCCR 34 ("Vetter") per Handley JA (Powell JA concurring), Priestley JA dissenting.The facts The appellant, Ms Natalie Vetter ("the worker"), was employed by the respondent, Lake Macquarie City Council ("the employer"). Her place of employment was at Boolaroo, near Speers Point, in New South Wales. Her place of abode was at Nelsons Plains, which is north of Newcastle, where she lived with her parents. It was the worker's practice to drive her car to and from work. Her usual route home after work took her northwards, a distance of 38.9 km. It ordinarily required a journey of about 45 minutes. However, as the primary judge found, it was also the worker's practice, each fortnight, to visit her grandmother and to have dinner with her at her home which was in Belmont. This the worker did on 1 June 1993, arriving at her grandmother's home at about 5.00 pm. She had dinner with her grandmother and, at about 7.00 pm, departed for her place of abode. The complete journey, taking in the worker's visit to the grandmother's home, covered a total distance of 58.6 kms. It thus added 19.7 kms to the journey, with a corresponding increase in the time of travel. It necessitated first travelling south-east to Belmont, instead of north on the direct journey to Nelsons Plains. In effect, it involved an almost semicircular diversion through the outlying districts of Newcastle for a private purpose of no concern to the employer. At about 7.15 pm, while proceeding north in the direction of her home, the worker's vehicle left the road and collided with a parked truck. The worker, who was alone in her vehicle, was severely injured. Because she suffered brain damage, she was unable to recollect anything of the collision or why it had occurred. There were no witnesses. All that was known was that the worker's car had crashed into the back of the stationary vehicle. There were no marks on the roadway to explain what had happened. There was no evidence of the speed of the worker's car at the time of the collision. Nor was there evidence of any conduct of another vehicle that had played a part in the accident. The worker made a claim under the Compensation Act. She did not suggest that her injuries were received whilst engaged on a journey required for her employment[42]. Her claim was for benefits provided for workers injured in defined circumstances on specified journeys[43] between identified places to and from work[44]. Her case, put simply, was that she had been injured on a journey home from work. The employer declined to pay compensation. It justified its refusal on the grounds that: (1) the worker was not injured on a "journey", as defined; (2) if she was, such "journey" was not a "daily or other periodic [journey]"[45] as provided by the Compensation Act; and (3) in any case, there had been a substantial "interruption of, [and] deviation from" any compensable journey, which was made for a reason unconnected with the worker's employment or the purpose of the compensable journey, which had materially increased the risk of injury[46]. If all of these defences failed, the employer finally argued that (4) the injuries suffered by the worker were caused "partly or wholly" by fault on her part[47].[42]cf Bull v Schweppes (Australia) Pty Ltd [1960] WCR (NSW) 67.[43]Compensation Act, s 10(1), with cross-reference to s 10(3).[44]Relevantly between the "worker's place of abode and place of employment": Compensation Act, s 10(3)(a).[45]Compensation Act, s 10(3)(a).[46]Compensation Act, s 10(2)(a).[47]Compensation Act, s 10(1A).
The history of the journey provision in the Compensation Act therefore reflects changing attitudes and varying legislative objectives. It was agreed that the present appeal fell to be decided by the application of the provisions of s 10 as that section stood at the time the worker received her injuries[59].[59]WorkCover Legislation Amendment Act 1996 (NSW), Sched 1, item 1.3, [5].The decision of the Court of Appeal In the Court of Appeal the judges divided. The leading judgment was given by Handley JA. His Honour rejected two of the arguments advanced by the employer for reasons with which Priestley JA concurred. The first of these (on an assumption contrary, so far as Handley JA was concerned, to his main conclusion about the proper characterisation of the "journey") concerned the primary judge's decision that the worker had received her injuries in the course of an "other periodic journey" within the meaning of the Compensation Act[60]. The second concerned the primary judge's conclusion that any such increase in the risk of injury, as had occurred on the journey, was slight and not a material increase of the disqualifying kind contemplated by the Act[61]. On each of these points, Handley JA affirmed that there was evidence to support the findings at first instance. There was therefore no error of law that would authorise intervention by the Court of Appeal.[60]Vetter (1999) 18 NSWCCR 34 at 41-42 per Handley JA, 49 per Priestley JA.[61]Vetter (1999) 18 NSWCCR 34 at 43 per Handley JA, 49 per Priestley JA. On the final point argued before the Court of Appeal, Handley JA concluded that the primary judge had erred in law[62]. In this respect too, Priestley JA agreed[63]. The error concerned the application by the primary judge of an incorrect legal test for determining what the employer had to show in order to establish the "fault" for which s 10(1A) of the Compensation Act provided. In effect, Priestley and Handley JJA concluded that the primary judge had erred in law in finding that there was no evidence that the injury had been caused, partly or wholly, by the fault of the worker. In their Honours' conclusion, there was some evidence. It was not necessary in law for the employer to identify the particular negligent act or omission relied on[64]. The primary judge had erred in approaching the question of fault on the assumption that it was. [62]Vetter (1999) 18 NSWCCR 34 at 47.[63]Vetter (1999) 18 NSWCCR 34 at 49-50.[64]Vetter (1999) 18 NSWCCR 34 at 46 per Handley JA referring to Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 415 per Barwick CJ. The third member of the Court of Appeal, Powell JA, refrained from expressing an opinion on any of the foregoing conclusions[65]. However, Powell JA concurred with Handley JA in his determination of the primary issue argued for the employer in the Court of Appeal. This was described as the resolution of the question whether, in the circumstances of this case, "there were two journeys or one"[66].[65]Vetter (1999) 18 NSWCCR 34 at 50.[66]Vetter (1999) 18 NSWCCR 34 at 37 per Handley JA. The primary judge had asked the same question in his reasons: Vetter v Lake Macquarie City Council unreported, Compensation Court of New South Wales, 29 May 1998 at 8-9 per Judge Duck.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW AND CALLINAN JJ,
HAYNE J