Faelmann v Workers' Compensation Regulator [2016] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Faelmann v Workers' Compensation Regulator [2016] QIRC 036 PARTIES: Faelmann, Catherine Ann (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2015/258 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 31 March 2016 HEARING DATE: 22 March 2016 HEARD AT: Brisbane MEMBER: Deputy President Kaufman ORDERS: 1. The appeal is allowed 2. The decision of the respondent is set aside 3. The application for compensation under the Workers' Compensation and Rehabilitation Act 2003 is accepted 4. The respondent is to pay the appellant's costs of and incidental to the appeal, to be agreed, or failing agreement to be the subject of a further application to the Commission CATCHWORDS: LEGISLATION: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether substantial deviation - whether substantial interruption - whether beyond control of deceased - beneficial legislation Workers' Compensation and Rehabilitation Act 2003, s36 -- 1 of 8 -- 2 CASES: David Henry Riley v WorkCover Queensland (C 23 of 1997) Walker v Wilson (1991) 172 CLR 195 APPEARANCES: Mr P de Plater, counsel, for the appellant instructed by Neilson Stanton & Parkinson Mr P Rashleigh, counsel, for the respondent instructed directly by the Workers' Compensation Regulator Reasons for Decision [1] Catherine Ann Faelmann, the widow of Harry Heino Faelmann, has appealed the decision of the Workers' Compensation Regulator to reject her claim for compensation. The reason for the rejection was that the death of her husband on 26 November 2014 was excluded from the definition of "injury" for the purposes of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") by virtue of the operation of section 36(2)(b)(ii) of the Act. [2] Counsel for the parties conveniently provided me with a set of agreed facts which I set out verbatim in paragraphs 3 to 31, inclusive. Facts [3] The Appellant was the wife of Harry Heino Faelmann (“the deceased”). [4] The deceased suffered fatal injuries in a motor vehicle accident which occurred at approximately 5.25pm on 26th November 2014 on Middle Creek Road, Federal in the State of Queensland. [5] The deceased suffered a personal injury in the motor vehicle accident on 26th November 2014 and the deceased’s death on 26th November 2014 resulted from this personal injury. [6] At all material times, the deceased was employed by Spotless Management Services Pty Ltd as a meter reader. [7] The deceased’s place of employment was the Gympie Energex depot located at 50 Corella Road, Gympie in the State of Queensland. [8] At the time of the motor vehicle accident, the deceased was travelling between his place of employment in Gympie and his home located at 475 Middle Creek Road, Federal in the State of Queensland. [9] The deceased commenced the journey between his place of employment and his home at approximately 3.45pm. -- 2 of 8 -- 3 [10] It was the deceased’s usual practice in making the journey from his place of employment to his home to travel via the Bruce Highway from Gympie to Federal where he would exit the highway at the old Bruce Highway exit and then travel in a westerly direction on the old Bruce Highway before turning into Middle Creek Road. [11] Prior to commencing his journey, the deceased made contact with his friend, Philip Randall, who lived at 7 Thomason Road, Traveston (“the property”) at approximately 3.30pm to make arrangements to collect a spray gun from Mr Randall. [12] The deceased arrived at the property at around 4.15pm to collect the spray gun. However, Philip Randall, his wife, Kym, and their son, Jesse, were planting a tree near a dam on the property. This was in memory of Mrs Randall’s late mother. [13] Mr Randall waved to the deceased as the deceased rode past the dam but it is likely that the deceased did not see the Randalls. [14] Upon arrival at the property, the deceased parked his motorcycle near a shed on the property which was about 150 metres from the dam and then probably proceeded to look for the Randalls, who could not be seen at the dam from the shed. [15] The deceased located the Randalls at the dam approximately five to seven minutes after the deceased arrived at the property. [16] The planting of the tree took approximately another ten to fifteen minutes. [17] The deceased waited at the dam while the Randalls completed the task of planting the tree. [18] Upon the completion of the planting of the tree, the Randalls and the deceased walked from the dam to the shed, where the motorcycle was parked, to locate the spray gun. [19] After locating the spray gun the deceased and Mr Randall engaged in conversation for about five to ten minutes. [20] The deceased indicated to Mr Randall that he wanted to get going as he had some things he wanted to do at home. [21] The deceased left the property at approximately or shortly after 5.00pm and resumed his journey to his home by travelling in a westerly direction towards the Bruce Highway. [22] The deviation in the deceased’s journey was about 1.6 kilometres in each direction. [23] The time taken in the deviation and/or interruption to the journey was somewhere around 45 to 50 minutes. [24] The journey from the deceased’s place of employment to his home is estimated to be slightly in excess of 39 kilometres and it is estimated that that would take the deceased between 35 and 40 minutes to complete. -- 3 of 8 -- 4 [25] The distance from the property to the deceased’s home is estimated to be 16 kilometres and it is estimated that it would have taken the deceased approximately 17 minutes to complete that part of the journey. [26] The overall length of the journey the deceased would have taken from his place of employment, taking into account the deviation to the property, is estimated to be 42.2 kilometres and between 40 to 45 minutes in time taken. [27] The legislative provisions relevant to the determination of the Commission are set out in sections 32, 35, 36 and 194 of the Act. Those sections relevantly provide: 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if— (a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or … (3) Injury includes the following— … (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; 35 Other circumstances (1) An injury to a worker is also taken to arise out of, or in the course of, the worker's employment if the event happens while the worker— (a) is on a journey between the worker's home and place of employment; or … (2) For subsection (1), employment need not be a contributing factor to the injury. … 36 Injury that happens during particular journeys -- 4 of 8 -- 5 (1) This section applies if a worker sustains an injury in an event that happens during a journey mentioned in section 35. (2) The injury to the worker is not taken to arise out of, or in the course of, the worker's employment if the event happens— … (b) during or after— … (ii) a substantial interruption of, or deviation from, the journey. (3) However, subsection (2)(b) does not apply if— … (b) the delay, interruption or deviation arises because of circumstances beyond the worker's control. … (5) For subsection (2)(b)(ii), in deciding whether there has been a substantial interruption of, or deviation from the journey, regard must be had to the following matters— (a) the reason for the interruption or deviation; (b) the actual or estimated period of time for the journey in relation to the actual or estimated period of time for the interruption or deviation; (c) for a deviation—the distance travelled for the journey in relation to the distance travelled for the deviation. … 194 Application and object of pt 11 (1) This part applies if a worker dies because of an injury. … (3) The object of this part is to provide for payment by an insurer of— -- 5 of 8 -- 6 (a) particular expenses arising from the worker's injury and death; and (b) compensation to persons having an entitlement to compensation under this part. [28] There is no dispute that the deceased was a worker within the meaning of the Act. [29] There is no dispute that the deceased suffered personal injury. [30] There is no dispute that the deceased was on a journey between his place of employment and his home when he suffered his fatal injuries. [31] The issue for determination by the Commission is whether: (a) the event giving rise to the deceased’s injury, that is the motor vehicle accident that happened at about 5.25pm on 26 November 2014, occurred after a substantial interruption of, or deviation from, the journey pursuant to section 36(2)(b)(ii) of the Act; (b) and, if that be the case, then whether section 36(3)(b) of the Act operates to exclude the applicability of section 36(2)(b), if the interruption or deviation arose because of circumstances beyond the worker’s (the deceased’s) control. Consideration [32] The compass of the appeal is narrow. There is no dispute that the deceased was a worker within the meaning of the Act and that he suffered a personal injury. Nor is there any dispute that the deceased was on a journey between his place of employment and his home when he suffered his fatal injuries. [33] The deviation from the deceased's normal route home was a total of 3.2 km in a journey that would normally have been in excess of 39 km. The regulator submitted that the event occurred after a substantial interruption of the journey and, accordingly, the deceased did not suffer an injury within the meaning of section 32 and 35 of the Act.1 The regulator also accepted that the deviation "might seem to be not substantial in distance."2 [34] Accordingly, the only issue to be decided is whether the interruption of the deceased's journey was substantial and, if so, whether the interruption arose because of circumstances beyond the deceased's control. 1 Respondent's Outline of Submissions, paragraph 1(c). 2 Respondent's Outline of Submissions, paragraph 37. -- 6 of 8 -- 7 [35] The parties accept, as do I, that the Act is beneficial legislation and that where two constructions of the legislation are possible, that which is favourable to the worker should be preferred.3 [36] I was referred to a number of authorities which make it tolerably clear that the question of whether an event happens after a substantial interruption of, or deviation from, the journey must be assessed by having regard to the particular facts and circumstances of the case in issue. [37] In David Henry Riley v WorkCover Queensland,4 the President, de Jersey J, as his Excellency then was, provided some useful guidance as to how the analysis should be approached. His Honour said: "Whether or not a deviation is substantial within the meaning of the Act, as applied to the circumstances of a particular case, should be assessed having regard, not just to time and distance, but by reference to its purpose and its effect on the journey from residence to work." [38] It seems to me that his Honour's observations are equally applicable to the determination of whether an interruption is substantial within the meaning of the Act. His Honour continued, quoting from an unreported decision of Samuels JA of the New South Wales Court of Appeal delivered on 18 April 1980: "Since in the ordinary course of events most workers when they leave their place of employment intended ultimately to go to their place of abode, the critical question is likely to be the nature of any interruption and the question whether, if one occurs, it merely interrupts a journey which remains of the statutory kind, or bisects what would otherwise be a continuous journey into two separate journeys. …. In my view the solution of that issue raised only a question of fact." [39] In Walker v Wilson the High Court considered the Workers Compensation and Assistance Act 1981 (WA). Section 19(5)(c) of that act interestingly provided that a "substantial interruption" prima facie includes any interruption of the journey for a period of more than one hour. Brennan J outlined that a worker was deemed to have suffered a personal injury by accident arising out of or in the course of his employment where he suffered a personal injury while travelling on any journey which he established was reasonable in the circumstances for him to take. An injury incurred during, or after, any substantial interruption of the journey, made for any reason unconnected with his employment was not compensable. [40] In that matter, His Honour, in discussing what constituted substantiality, said: "in my opinion substantiality is to be assessed by reference to the circumstances of each case 3 Walker v Wilson (1991)172 CLR 195, 199. 4 David Henry Riley v WorkCover Queensland (C 23 of 1997). -- 7 of 8 -- 8 which include not only the terms and conditions of a worker's employment but also the exigencies of the journey and the personal circumstances of the worker."5 [41] Although here the deviation was a short distance, the time the deceased spent at the Randalls' property added considerably to the time that his journey would normally have taken. The journey, without the deviation, would normally have taken between 35 and 40 minutes. The time taken in the deviation was around 45 to 50 minutes. The length of the interruption to the journey was largely caused by the Randalls unavailability and the deceased waiting for them to finish planting the tree. It was unexceptional that the deceased would deviate from his normal route home by the short distance of 1.6km in each direction in order to borrow a spray gun. Nor is it exceptional that he would wait until the Randalls were ready to give it to him. [42] Having regard to the circumstances; a short deviation on the way home from work to borrow some equipment, and the exigencies; a wait of some 45 minutes instead of a round trip of some 32 kilometres and approximately 34 minutes were the deceased to have proceeded to his home and then returned, to collect the spray gun, it seems to me that the interruption was not substantial. [43] Further, having regard to the matters to which section 36(5) directs me, and being guided by the decisions to which I have referred, I conclude that the interruption of the deceased's journey was not a substantial interruption for the purposes of the Act. [44] Although it is not necessary for me to decide, I am also of the view that the interruption arose because of circumstances beyond the deceased's control as contemplated by section 36(2)(b)(ii) of the Act. [45] I accept Mr Rashleigh's submission on behalf of the regulator that the deceased need not have waited until Mr Randall had finished planting the tree, but could have continued his journey home without having collected the spray gun. However, having regard to the exigencies of the journey, the personal circumstances of the worker, and the purpose of the deviation, as well as the effect of the deviation on the journey, I am of the view that, in the circumstances, the interruption to the journey was due primarily to the actions of the Randalls, which were beyond the deceased's control. [46] It follows that the appeal should be allowed, the decision of the regulator should be quashed and replaced with a decision that the claim be accepted. The regulator should also pay the appellant's costs in a sum agreed or, in the event of a failure to agree, as determined by the Commission on application. 5 Walker v Wilson (1991) 172 CLR 195, 201. -- 8 of 8 --