Bella v WorkCover Queensland; Bella v WorkCover Queensland [2000] ICQ 17 (2000) 164 QGIG 72

72 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 May, 2000 INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Stephen Edward Bella AND WorkCover Queensland (No. C8 of 2000) Anthony Stephen Bella AND WorkCover Queensland (No. C9 of 2000) PRESIDENT HALL 17 May 2000 DECISION This is an appeal from the decision of an industrial magistrate. Neither before the industrial magistrate nor on appeal were the facts in dispute. The appellants are brothers. At all material times each of them was employed by Peter Champion Pty Ltd as trustee for the Champion Family Trust. Their employer was engaged as a contractor at the Coppabella mine. Whilst working at the mine the brothers resided at Oben Park Station. The appellants’ father is a proprietor of the station. Both appellants, I should add, have a principal place of residence nearer to the coast, Stephen in Sarina and Anthony in Mackay. On 25 May 1999 each of the appellants, who had worked the same shift, finished work at 5 p.m. They elected to return to their temporary residence by motorbike. Stephen was the driver and Anthony was the pillion passenger. They travelled down a road at the mine before turning left on to the Peak Downs Highway. They travelled some distance along the highway before turning on to a dirt road which led to a gate about 15-20 metres off the highway. Access to Oben Park Station was had by that gate. To gain access to the dwelling within which the brothers resided, it is necessary to open a further gate. It is necessary to open a further gate because, as is perhaps not uncommon on rural properties, the dwelling is surrounded by a house yard and a fence. The fence is approximately 15 metres from the house (line drawn at a right angle to house). The gate granting access to the house yard is approximately 1.4 kilometres from the gate by which access is had from Peak Downs Highway to the station. Whilst travelling that distance the motorbike came into collision with a horse. (At a point approximately 400 metres from the gate granting access from Peak Downs Highway.) Each of the appellants lodged a claim for compensation under the WorkCover Queensland Act 1996. Each claim was rejected. Each of the appellants sought a statutory review of the rejection of his claim. In both cases the statutory review officer confirmed the decision to reject the claim. Both appellants availed themselves of the right at s. 498 of the WorkCover Queensland Act 1996 to appeal to the industrial magistrate. Both appeals were unsuccessful. Each of the appellants has now appealed to this court pursuant to s. 509 of the WorkCover Queensland Act 1996. To aid understanding of the short but quite difficult point which arises on the appeal it is necessary to set forth substantially the whole of s. 37 of the WorkCover Queensland Act 1996 . (Neither appellant had any prospect of bringing himself within the primary definition of “injury” at s. 34 because the employment was not a significant contributing factor to the injury. However, by s. 34(2), where s. 37 may be invoked, the employment need not be a significant contributing factor to the injury.) Relevantly, s. 37 provides:– “(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 the journey between the worker’s home and place of employment; . . . (3) For subsection (1), the journey – (a) must be by the shortest convenient route; and (b) for a journey from or to a workers home and starts or ends at the boundary of the land on which the home is situated. (4) In this section – “home”, of a worker, means the workers usual place of residence, and includes a place where the worker – (a) temporarily resides before starting a journey mentioned in this section; or (b) intended to temporarily reside after ending a journey mentioned in this section.”. (Emphasis added) The point at issue, both before the industrial magistrate and on the appeal, was whether the boundary of the land on which the appellants’ temporary home was situated was the house yard or the boundary of Oben Park Station. After careful review of the authorities the industrial magistrate preferred the latter view. It was His Worship’s opinion that certainty might be given to s. 37 only if the “boundary” of the land upon which a worker’s home is situated was taken to mean the real property description of the land upon which the worker’s home was situated. Section 37(1) was not itself helpful. However the section uses the noun “home” rather than the nouns “house, unit, flat or dwelling”. The section fixes the termini of the journey as the place of employment and the “boundary of the land” rather than the “house, unit, flat or dwelling”. That is some indication that the relevant journey does not commence (or start) at the door of the “house, unit, flat or dwelling” in which the worker resides, and that the boundary of the house, unit, flat or dwelling and the land on which it is built need not coincide. In the circumstances of uncertainty and in reliance on s. 14(B)(1)(a) and (3)(e) of the Acts Interpretation Act 1954 I have considered the explanatory notes to the WorkCover Bill 1996 (The Minister’s second reading speech is uninformative). The relevant passage in the explanatory notes is as follows:– “Clause 37 replaces section 91(2)(b) of the Workers Compensation Act 1990. It outlines further circumstances when an injury is taken to have arisen out of, or in the course of, the worker’s employment. The clause has been changed: • to clarify where a journey commences and ends i.e. at the boundary of the property on which the worker’s home is situated. This change is designed to remove the possibly fraudulent journey claims that arise on a worker’s property e.g. getting into the car, falling down the front stairs or tripping in the front yard. • to specify that a journey must be by the shortest convenient route. • to remove previously superfluous provisions which would be work related and as such covered by the previous clause i.e. receipt of wages, place of pick up. • according to current drafting practice.”. As a matter of first impression, the use of the noun “property” rather than the noun “home” suggests that the industrial magistrate was right, particularly when it is borne in mind that one change was the substitution of “home” for “place of abode” and another was confining “journey” to journey which “starts or ends at the boundary of the land on which the home is situated”. However, on reflection, it is apparent from the reference to “worker’s property” in the second sentence at the first dot point that “property” is not being used in quite that sense. In very many cases a worker will have no propriety interest in his home. There is nothing in either the explanatory notes or the section itself to indicate an intention to exclude from the benefits of the journey provisions a tenant who holds under a licence, a resident in a caravan park or a lodger in a boarding house. Indeed, s. 37(4) is a clear indication of an intention to regulate journeys by such workers. -- 1 of 3 -- 26 May, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 73 It is convenient to commence with the decision of the full court of the Supreme Court of New South Wales in Bowden v Murdoch’s Limited (1951) 51 SR (NSW) 423. The case concerned a worker who resided in a self-contained unit on the upper floor of a block of 25 flats. Access to the unit was obtained by a door, passageway and staircase used by the worker in common with the occupants of the other flats in the building. Whilst ascending the staircase on the way from his flat to his work the worker fell and injured himself. The relevant journey provision of the Workers Compensation Act, 1926-1948 (NSW) referred to a daily or other periodic journey “between the worker’s place of abode and place of employment”. At 427-428 Street CJ, with whom Maxwell and Owen JJ concurred, observed:– “To some extent the question ‘What is a man’s place of abode?’ must always be a question of fact and degree, the answer being plain and easy in many cases. But though an infinite variety of circumstances may arise for consideration in practice, the true meaning and interpretation of the words ‘place of abode’ is a question of law. I do not think, however, that it is possible to lay down a definition in short form which would be completely apt to cover all cases. As was pointed out by Grove J. in Wakefield Local Board v. Lee, ‘Except in mathematics, it is difficult to frame exhaustive definitions of words; they must be construed with reference to the subject matter to which they are applied.’ Again, in R. v. Hall, Abbot C.J., in discussing the meaning of the word ‘householder’, said: ‘Now the meaning of particular words in Acts of Parliament, as well as other instruments, is to be found not so much in a strict etymological propriety of language, or even in popular use, as in the subject or occasion, on which they are used, and the object that is intended to be attained.; In the present case I think it is clear that the Legislature had in mind the necessity for protecting a worker when he was on his journey, that is to say, when he was a traveller or wayfarer. In the most usual circumstances his journey, for this purpose, would commence when he first emerged into a place or way used by members of the community at large as a thoroughfare, whether as of right or not, for the purpose of moving from place to place; but I am not suggesting that this definition is all-inclusive, and that it would be sufficient for the determination of cases which might arise on other and different facts. But it I obvious that all the Courts that have been called upon to consider the meaning and effect of the language used in s. 7 (1) (b) and (c) have always had in mind this general concept that a man does not become a traveller till he emerges from the premises which are his place of abode. In one sense, of course, it may be said that in the present case his place of abode was Flat No. 8, but where a man and his family live in a communal building where a number of separate tenants are housed in premises under one roof, then I do not think that it is apt to say that for the purpose of s. 7 his place of abode is limited to the flat occupied by him. To adopt the language of Perdriau J. In Fleury’s case, I think that the applicant’s journey commences when he leaves the ‘home building or its precincts,’ and, with all respect, I find myself in complete agreement with the judgment of Moffitt J. in Thornleigh v. Sydney Waterfront Watchmen’s Association and for the reasons expressed by his Honour.”. Understandably, each of the appellants submits that the track to the access gate to Oben Park Station and the dwelling house is just such an informal thoroughfare as is referred to by his Honour. (It should perhaps be added that the sketch of the station which was put in as an exhibit before the industrial magistrate lends some factual support to that submission.) Certainly the reference to “thoroughfare, whether as of right or not” was critical to the decision in Bowden’s case. The earlier authorities took a narrower view. In Williams v Ducon Condensor Limited (1949) 23 WCR (NSW) 122 at 125-126 Judge Rainbow observed:– “In my opinion the words ‘place of abode’ should be considered to mean and include the house or premises, the curtilage, messuage, and appurtenance if that be the correct conveyancing description of the whole of the land and boundaries of the home here in the father’s possession where the applicant resided . . . the worker must receive injury ie, physiological harm must occur, in the space between the two points I have indicated, namely, between the boundary of the home premises and the boundary of the employer’s premises.”. In that case, I should add, the applicant for compensation failed. In returning home from her place of employment she lost control of her bicycle as it passed over an uneven surface outside the front gate of her house. In consequence of the loss of control she fell within the driveway of her home (not the public footpath) and injured herself. In Fleury v Select Cake Service (1950) 24 WCR (NSW) 15 at 17 Judge Perdriau followed the decision of Judge Rainbow in Williams v Ducon Condensor Limited, ibid. Bowden v Murdochs Limited (1951) 51 SR (NSW) 423 was followed by the then Workers Compensation Board of Victoria in Stephenson v Country Roads Board (1948) WCD (VIC) 131. The facts of the case were somewhat similar to the present matter. A worker returning to his dwelling house from his place of employment broke his leg when he fell over the outer fence surrounding the property upon which his dwelling house was erected. The dwelling house though situated on the property so fenced was separated from the rest of the property by fences and outbuildings which enclosed the dwelling house, gardens, fruit trees, paths and the yard. The question before the court was whether the worker had received the injury whilst travelling between his place of employment and his place of residence. It was held that he had. At 132 to 133 the Board observed:– “The place of residence is a conceptual unit formed of the infinitely various items which may be said to constitute a place of residence or the place where a person lives. The unit is in some way cut off or separated in space from its surroundings. In the case of the ordinary suburban residence the boundary fences of the block on which the residence and outbuildings are erected are the obvious physical limits separating the residence from its immediate surroundings. The conceptual unit of such a place of residence includes the house, the outbuildings, the lawn, gardens and yard enclosed by the boundary fences. On the other hand, where the place of residence is situated on a large station or estate which may cover many acres or even square miles and there is no obvious physical boundary separating or cutting off what we have described as the conceptual unity of residence from the surrounding property, there would ordinarily be little difficulty in determining in any particular case and with reasonable accuracy where the imaginary boundaries of the ‘unit of residence’ actually were. The existence of lawns, parks, gardens, outbuildings or ornamental trees in the vicinity of the dwelling would be matters proper to take into consideration and would guide one determining the actual limits.”. It may be conceded that in Vickers v Jarrett Industries (1977) 15 SASR 525 the Full Court of the Supreme Court of South Australia, in adopting the boundary test, shifted the boundary so as to include within the journey the distance between the front door and the front gate. If the decision were adopted here it would greatly aid the appellants because it would shift the boundary from the fence of the house yard to the door of the dwelling. However, the circumstance (previously referred to) that the noun used is “home” rather than “house, unit, flat or dwelling” and the use of language “the boundary of the land on which the home is situated”, which suggests that the land may be larger in area rather than co-terminus with the home, weigh against adoption of the South Australian re-definition of boundary in this state. I note the criticism made by Bray CJ of the distinction between highway risk and home risk, viz – “The distinction between highway risk and home risk referred to by Street CJ in Bowden’s case is not, with respect, when analysed a safe criterion. While accepting in a general way that some such distinction may have been in the mind of parliament, some risks are common to both situations and unaffected by the peculiar features of either. A man may trip and fall on the footpath without any other traffic being involved. It is not clear to me why such a fall just outside the front gate should be compensable while one just inside it is not.”. Here, as it is apparent from the explanatory note previously cited, the mischief at which the amendment was aimed was the possibility of fraudulent journey claims such as “getting into the car, falling down the front stairs, or tripping in the front yard”. -- 2 of 3 -- 74 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 May, 2000 I have been referred to the decision of Moynihan, President in Leggett v The Workers Compensation Board of Queensland (1988) 81 WCR 164. I do not find the decision helpful. In that case the unsuccessful applicant for compensation showered, ate breakfast and at approximately 5.15 am walked down the internal stairs of his residence with the intention of entering his motor car and driving to work. He noticed that the left hand back tyre of his sedan was flat. In the course of removing the spare tyre which was lying flat in the boot, he suffered a back injury. He failed for two reasons. He was wholly within his place of abode, as the phrase then was, rather than travelling between that place and the place of his employment. Additionally, he was preparing to depart upon his journey rather than upon his journey. It was a pellucidly clear case and of no assistance here. The submission that adopting the real property description as the boundary will enhance certainty in the administration of the law, is, I think, overly optimistic. Granted that on the “boundary” approach case by case analysis will be required, reliance on the real property description will give rise to other problems. Mr Morgan for the appellants puts the example of settlements such as Sanctuary Cove . Is a tenant of one of the residential dwellings driving through the common space on his way home from work on a protected journey? Would the answer be different if the title of the common space and the title to the residences were held by different, albeit related, corporations? In the latter case, does it make any difference whether in passing through the common space, the person is relying upon consent or enjoying an easement? Section 37, or more accurately those parts of s. 37 of present relevance, is not beneficial legislation. It is designed to exclude a range of claims because of the possibility that fraudulent claims might be made. However, the WorkCover Queensland Act 1996 should I think be regarded as beneficial legislation, compare Wilson v Wilson’s Tyre Works (1960) 104 CLR and Bird v The Commonwealth (1988) 165 CLR 1. It seems to me that if the “boundary” approach is adopted and the definition of boundary in Bowden v Murdochs Limited (1951) 51 SR (NSW) 423 is adopted, s. 37 would strike at the mischief at which it was aimed without striking down other (possibly innocent) claims. I reject the submission that on such a construction the changes of 1996 achieve nothing. It was not settled that Bowden v Murdochs Limited, ibid governed the construction of the Workers Compensation Act 1990. It was arguable that Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 525 applied. Each of the appeals is allowed. I order the respondent pay the costs of each appellant taxed as costs are taxed in the Supreme Court of Queensland. Dated this seventeenth day of May, 2000. D.R. HALL, President. Released: 17 May 2000 Appearances:– Mr T. Morgan instructed by Bill Cooper and Associates, Solicitors, for the appellant. Mr P. Rashleigh instructed by WorkCover Queensland for the respondent. ########################################################################################################################## # -- 3 of 3 --