Ratabor Radovanovic v White Constructions (ACT) Pty Limited Sca [1992] ACTSC 8; (1992) 106 FLR 405 (30 January 1992)

SUPREME COURT OF THE ACT

RATABOR RADOVANOVIC v. WHITE CONSTRUCTIONS (ACT) PTY. LIMITED
S.C.A. No. 106 of 1991
Workmen's Compensation
[1992] ACTSC 8; (1992) 106 FLR 405

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Workmen's Compensation - Appeal from Magistrates Court - Nature of proceedings on appeal - Principles for appeal court to apply - Sufficiency of evidence - Injury arising during unpaid overtime work - Whether injury arising "out of" or "in the course of" employment - Degree of likelihood of injury occurring on building site - No new issue of principle.

Workmen's Compensation Act 1951, s.7(1), s.24

Magistrates Court (Civil Jurisdiction) Act 1982, s.282G, Fourth Schedule, Part 6A

Evidence Ordinance 1971, s.29

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Dare v Dietrich [1979] FCA 47; (1979) 37 FLR 175

Smith v Australian Woollen Mills Limited [1933] HCA 60; (1933) 50 CLR 504

Nunan v Cockatoo Docks and Engineering Co Ltd (1941) 41 SR (NSW) 119

Odorisio v Electric Power Transmission Pty Ltd (1967) 68 SR (NSW) 180

HEARING

CANBERRA
30:1:1992

Counsel for the Appellant: Mr G. Lunney

Instructing solicitors: Messrs Gary Robb and Associates

Counsel for Respondent: Mr G. Stretton

Instructing solicitors: Messrs Sly and Weigall

ORDER

The appeal be upheld.

The Magistrate's award be set aside and in substitute there be an award in favour of the appellant worker.

The case be remitted to the Magistrates Court for further findings as to incapacity and the amount of compensation payable to the appellant by the respondent.

The respondent pay the costs of the appeal.

DECISION

This is an appeal by the worker, Mr Ratabor Radovanovic, from an award of Magistrate Nicholl sitting as an arbitrator pursuant to the Workmen's Compensation Act 1951. Mr Radovanovic had been employed by the respondent as a nipper on the building site where the National Convention Centre was being constructed, the respondent being the head contractor. The Magistrate found, and there is no issue, that at about 2.00 pm on Sunday, 26 June 1988, Mr Radovanovic was discovered on the site in a somewhat dazed and disoriented condition. The Magistrate also appears to have found that Mr Radovanovic's condition was caused by an injury to his head, although there is no specific finding on this issue expressly stated. There were no other specific findings. In dismissing the worker's claim, the Magistrate said that he had to be satisfied that Mr Radovanovic was "one, employed, and two, that his injury incurred in the course of his employment", and that he was not so satisfied.

2. The nature of an appeal to this Court under the Act has been the subject of several decisions in recent years and it should be unnecessary to embark upon a lengthy discussion of the principles. However, it must be remembered that the nature of any appeal depends upon the terms of the statute creating the appeal, and accordingly decisions by other courts about appeals under other statutes, and decisions about appeals under the Act prior to the amendments which came into force in 1984 and brought into operation s.282G of the Magistrates Court (Civil Jurisdiction) Act 1982, may be of limited assistance. Section 282G provides:-
"282G. In an appeal, the Supreme Court shall have regard to

the evidence given in the proceedings out of which the appeal
arose, and has power to draw inferences of fact and, in its
discretion, to receive further evidence."

3. The Court is bound to "have regard to the evidence given in the proceedings" before the Magistrate but in accordance with established principle, will not interfere with findings of primary fact which depend upon the credit of witnesses. As to inferences to be drawn from primary facts, in general, an appellate court is in as good a position as the tribunal to decide what inferences are to be drawn from those findings of the tribunal from which the appeal is brought, and "once having reached its own conclusion, will not shrink from giving effect to it": Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551.

4. In an appeal against an award made under the Act, there is another factor which is relevant. Although the Act empowers and obliges the Magistrates Court to settle matters arising under the Act, pursuant to s.24 of the Act, the dispute between the parties is to be settled by arbitration rather than by formal judicial process, so that the individual Magistrate sits not as a court but as an arbitrator. Consequently, the Magistrate does not determine legal rights and duties. In accordance with paragraph 6A of the Fourth Schedule to the Act, the Magistrate is not bound to act in a formal manner and is not bound by the rules of evidence. The Magistrate is bound to act "according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal form".

5. Where there is an appeal to the Supreme Court from an award made under the Act, the Court sits as a court of law. Whilst the "evidence" given before the Magistrate need not be evidence in the strict sense, because the Magistrate is not bound to apply the rules of evidence, the Court is bound by the Act to have regard to the evidentiary material before the Magistrate. Where a tribunal is not bound by the rules of evidence, the judicial nature of an appeal to a court tends to confirm that the court is required to make its own decision on the facts, assisted if it thinks fit by further evidence: Dare v Dietrich [1979] FCA 47; (1979) 37 FLR 175 at 180 per Deane J.

6. In the present case, no additional evidence was called or sought to be called on the appeal. I have had regard to the transcript of the testimony given on oath before the Magistrate and to the exhibits in the proceedings before him. There does not appear to have been any challenge to the credit of witnesses and there was no real question at any stage as to which witnesses should be believed or disbelieved or what evidence should be rejected or accepted. Furthermore, the limited scope of the material before the Magistrate and of his findings of fact assist to lead me to the firm conclusion that the Magistrate enjoyed no advantage in reaching his decision on the ultimate issues. It is therefore for me to make my own decision on the factual matters upon which the Magistrate did not express any finding and on the ultimate issues.

7. The evidence of Mr Radovanovic was that he was born in Yugoslavia on 16 February 1945, came to Australia in 1973 and worked in the construction industry ever since. On 20 March 1985 he commenced work with the respondent employer as a nipper. He had to clean and prepare for use the sheds, lunch room and toilets on the site. Usually he worked five or six days a week. He usually drove and parked his car outside the building site when he was working there.

8. A few days before Sunday, 26 June 1988, his leading hand, Mr Jankovic, asked him to work on the following Sunday. He agreed to do so. His job was to open the gates to the site to allow access by sub-contractors, clean the sheds after the sub-contractors had left and lock the gates at the end of the day. Mr Radovanovic had gone onto the site on a Sunday on previous occasions and cleaned up in preparation for the Monday, although he had not been instructed to do so, and was not paid for it.

9. On the evening and night of Saturday, 25 June 1988, Mr Radovanovic was at a club, subsequently spending the night at the home of a relative at Narrabundah.

10. Mr Radovanovic was unable to remember any of the events of Sunday, 26 June 1988.

11. Evidence was given by Mr Vlada Jankovic, the leading hand employed at the site by the respondent in early 1988. Mr Jankovic said that he usually worked seven days a week, but he qualified this to some extent by saying that he worked on a Sunday if asked to do so by the foreman. When he did work on a Sunday he was paid double time. His duties included the opening of the gates in the morning and the locking of the gates at the end of the working day. In 1988 Mr Jankovic went to EXPO, which necessitated his absence from work for some days. Before he left, he gave the key to the gate to Mr Radovanovic and asked Mr Radovanovic to open and lock the gates during his absence. With regard to the Sunday, his evidence was as follows:-

(30) "I did not tell him to come in Sunday but I said that if
somebody needed to come, he must come to open. I do not know
that they told him to come or not, I do not know."

12. In cross-examination, Mr Jankovic gave the following evidence:-

(34) "Well, now, when you - before you went away to EXPO,
did you arrange with anybody, did you speak with anybody about
giving the key to Mr Radovanovic? - - - I tell you true I do not
have to speak because I just told him that you come early, here
is key, because I got key from all offices, but I give him only
key from the gate; from my gate, I give him key. I said that
you come in the morning, open gate, I do not want nobody got
trouble to go in.
...
And did you tell somebody above you that Mr Radovanovic would be
opening that gate while you were away? - - - How to say - I do
not know, I not official, but they ask me, "Are you going there?
What about gate?" I say, "I fix it already for gate.""

13. Mr Jankovic also agreed in cross-examination that on some prior occasions the plaintiff had come to the site on a Sunday and had cleaned up after the sub-contractors in preparation for work on the Monday and that the plaintiff did so without seeking or receiving pay for that Sunday work.

14. It appears (p 41) to have been common ground between the parties that there was no record of any employee of the respondent working on the site on the day in question, but that it was possible that sub-contractors were there working on that day.

15. Evidence was given by Susan Elizabeth Bobjovav, director of a nursing agency, that the records of the agency showed that a Sister Caldwell, an industrial nurse, was employed by the agency at the White Industries site in Civic for eight hours on 26 June 1988. The practice was for the agency to supply a nurse on the site on a Sunday after someone on behalf of the respondent made a request on the previous Friday.

16. The Magistrate admitted into evidence, over objection, a written statement taken by Mr Radovanovic's solicitor from Sister Caldwell on 7 March 1989. I think that the document was probably admissible under s.29 of the Evidence Ordinance 1971 but whether or not it was admissible, the Magistrate was not bound by the rules of evidence and was free to admit it. I must therefore have regard to it. I think that it has evidentiary weight. It is consistent with the rest of the evidence. It was made relatively soon after the events in question, which were of a nature likely to remain in the memory of the person making the statement at the time it was made. There appears to be no reason why the person would not tell the truth to the best of her memory. There is no reason to believe that the person was not in a position to observe what she says she saw. There is no reason to believe that the solicitor did not make an accurate note. The statement is not contradicted by some other notes made by an enquiry agent on behalf of the respondent of a conversation with Sister Caldwell on 27 September 1988 (exhibit 4) or a letter written by Sister Caldwell to the solicitor on 2 January 1991 (exhibit E). According to the statement, Sister Caldwell knew Mr Radovanovic by sight. She got to work at the site at about 7.00 am. She noticed Mr Radovanovic behind the shed where she worked. He was emptying or filling a bucket and appeared to be doing his usual cleaning job. He looked a bit pale but not disoriented or unsteady on his feet or otherwise remarkable.

17. Constable Wesley James Herold gave evidence that he was on duty at the Civic Police Station on 26 June 1988 and was called to the National Convention Centre site at about 2.00 pm. He went there with another constable. They went to the basement and Constable Herold saw Mr Radovanovic attempting to operate a cement mixer. He appeared distressed, shaking, and did not respond when spoken to. The constables escorted Mr Radovanovic to the City Police Station. There, Constable Herold noticed a 2cm bruise on top of his head. He also appeared to be sore around the ribs and back. He was then escorted away by ambulance.

18. A report from an Assistant Clinical Superintendent of the Royal Canberra Hospital records that Mr Radovanovic was admitted to the hospital on 26 June 1988. He was found to be confused, non-verbal, pale and shaky. His injuries included a long left parasagittal fracture which was thought to be "possibly from a fall".

19. According to a report from Dr Gytis Danta, a neurologist who treated the plaintiff in hospital and afterwards,

"...he had some evidence of bruising of the right eyelids, was
responding to pain but not to command and had bilateral extensor
plantar responses."

A CT scan done the following day showed extensive intra-cerebral haemorrhages in both fronto-parietal regions. Dr Danta concluded that Mr Radovanovic had "sustained a very severe head injury".

20. Mr Radovanovic remained in hospital until 19 September 1988 when his wife returned from Yugoslavia and took him home. He did not see his local practitioner, Dr Niewiadomski, until 29 November 1988 and the report from that doctor is of no assistance for the purposes of this appeal.

21. In the light of the above evidence, I make the following findings:-

1. From 20 March 1985 to 26 June 1988, Mr Radovanovic was
employed by the respondent as a nipper to work at the National
Convention Centre site from Monday to Friday or Saturday each
week. His duties did not normally include opening and locking
the gates on the site, nor working on a Sunday.
2. Some days prior to Sunday, 26 June 1988 Mr Radovanovic was asked
by his leading hand to open and lock the gates on site during
the leading hand's absence. The leading hand had ostensible
authority from the respondent to make that request on behalf of
the respondent and had notified the foreman of the respondent
that he had made arrangements of that nature.
3. In accordance with the leading hand's request,
Mr Radovanovic attended the site on Sunday, 26 June 1988, opened
the gates and attended to some cleaning work on the site.
4. In attending and remaining on the site during the course of
the day, Mr Radovanovic did so for the purposes of the
respondent's business enterprise.
5. At some stage of the day, between the time he was observed
by Sister Caldwell at about 7.00 am and by Constable Herold at
about 2.00 pm, Mr Radovanovic received personal injury in the
nature of an injury to his head.

22. Under s.7(1) of the Act, the liability to pay compensation on the part of an employer depends upon the worker suffering personal injury arising out of or in the course of employment by the employer. The concept of an injury arising "out of" employment is not mutually exclusive of, or inconsistent with, the concept of injury arising "in the course of employment", and indeed the worker at one time had to satisfy both tests: see, for example, Smith v Australian Woollen Mills Limited [1933] HCA 60; (1933) 50 CLR 504.

23. There are hundreds, if not thousands of reported cases in Australia and elsewhere which discuss the meaning of these phrases and this judgment will not contribute to that discussion. It is sufficient to say that where the worker receives injury at the place of employment or during the performance of employment duties, it may not be necessary for the worker to rely on the concept of injury arising "out of" employment, because in these situations it will be considered that the injury is suffered "in the course of" employment. Where the injury is not so received it may be necessary to show some nexus between the event giving rise to the injury and the injury itself, which nexus is sufficient to establish that the injury was suffered "out of the employment", if not "in the course of employment". The worker will succeed if "the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury": Nunan v Cockatoo Docks Limited (1941) SR (NSW) 119 at 124 per Jordan C.J.

24. In the present case it was submitted on behalf of the respondent that as there was no direct evidence of where the injury was received or what Mr Radovanovic was doing when he received it, then there can be no inference either that the injury arose out of the employment or that it arose in the course of the employment with the respondent.

25. However, given the finding which I have made that the injury was suffered at some time between 7.00 am and 2.00 pm, I think that the most likely venue was somewhere on the building site. Of course it is possible that Mr Radovanovic left the building site and received the injury somewhere else. I take into account that he usually parked his car outside the building site, and that he could have gone to where his car was parked. It is possible also that he could have gone somewhere for lunch. But the immediate question is whether it is more likely that he received his injury on the building site than away from the building site. As there is no evidence at all that he left the site or that he had any real reason to leave it, the most likely venue, in my view, was somewhere on the site itself.

26. Once it is accepted that the most likely venue was on the site, in the absence of evidence to the contrary, it is more likely that he was about his employer's business, attending to cleaning up in preparation for the Monday, a task which he had been observed performing at 7.00 am, when he was last seen uninjured, and something which he had done on previous Sundays. Whether or not he was employed to work on previous Sundays does not need to be decided. He had been requested on behalf of the respondent to open and lock the gates so that sub-contractors would have access on 28 June 1988, the relevant day for the purpose of these proceedings. It is of course possible that having opened the gates he may have been up to some identified activity which took him outside the scope of his employment, but again it is a question of deciding what was the most likely scenario. Building sites are notorious for obstacles, projections, sloping and slippery surfaces and other hazards and the most likely scenario, in my view, is that somehow or other during the course of the morning or early afternoon, Mr Radovanovic hit his head on something on the site. Whether he fell over and struck his head as a consequence or whether he struck his head upon straightening up after stooping does not matter.

27. This is a civil case. The worker does not have to exclude every reasonable hypothesis consistent with absence of liability on the part of the respondent. It is likely that he received injury during the hours mentioned. He must have received that injury somewhere. It is likely that he received it on the employer's building site. He must have been doing something at the time. He was not there to practise golf or archery, paint the landscape or even read the newspaper. It is most likely that at the time he struck his head he was doing something connected with the pursuit of his employer's business.

28. Some cases (for example, Odorisio v Electric Power Transmission Pty Limited (1967) 68 SR (NSW) 180) talk about a presumption of continuance of employment where the last known acts of the worker prior to death or injury are performed in the course of employment. Such a presumption may well arise in the present case but it is unnecessary to rely on it.

29. I reject entirely the suggestion that Mr Radovanovic was affected by liquor at any relevant time. The suggestion comes from a bold assertion in the Royal Canberra Hospital report, repeated in the report of Dr Danta that Mr Radovanovic was a known alcoholic. Who it was who knew him to be so, and how the knowledge was come by or transmitted to the hospital, is not stated and the assertion is quite unsupported.

30. I also reject the assertion that Mr Radovanovic was involved in a fight the night before the day in question. Again there is nothing of weight to support the assertion.

31. I appreciate that the evidence in the case is meagre. Reasonable minds may differ as to the inferences to be drawn from it. The Magistrate's conclusion is understandable, although more specific findings of fact would have been useful. In accordance with the directive laid down in Warren v Coombes, this Court, once having reached its own conclusion will not shrink from giving effect to it.

32. The appeal is upheld, the Magistrate's award is set aside and in substitute there will be an award in favour of the appellant worker. The case is remitted to the Magistrates Court for further findings as to incapacity and the amount of compensation payable to the appellant by the respondent. The respondent is to pay the costs of the appeal.