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Federal Court of Australia |
COMPENSATION - employee of the Commonwealth - injury occurring while travelling between "place of residence" and "place of work" - construction of "place of residence" - whether Army barracks was normal place of residence or temporary place of residence - construction of "place of work".
Safety, Rehabilitation and Compensation Act 1988 , ss 4, 6
COMCARE AUSTRALIA (DEFENCE) V DANIEL TROY O'DEA
VG 10 of 1997
NORTHROP J
MELBOURNE
12 DECEMBER 1997
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IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 10 of 1997 |
|
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS JOAN DWYER (SENIOR MEMBER) AND DR P FRICKER (MEMBER) | |
|
BETWEEN: | COMCARE AUSTRALIA (DEFENCE)
Applicant |
|
AND: | DANIEL TROY O'DEA
Respondent |
|
COURT: | northrop j |
| DATE OF ORDER: | 12 december 1997 |
| WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
2. The decision of the Tribunal made on 16 December 1996 be affirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 10 of 1997 |
|
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS JOAN DWYER (SENIOR MEMBER) AND DR P FRICKER (MEMBER) | |
|
BETWEEN: | COMCARE AUSTRALIA (DEFENCE)
Applicant |
|
AND: | DANIEL TROY O'DEA
Respondent |
COURT:
NORTHROP J DATE: 12 december 1997 PLACE: MELBOURNE REASONS FOR JUDGMENT
Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") the applicant ("Comcare") appealed to this Court on a question of law from the decision of the Tribunal. The question of law sought to be raised was expressed in a number of ways but in essence it was whether, on the facts found by it, the Tribunal had misconstrued and misapplied the provisions of s 6(1)(b)(ii) and s 6(1)(b)(iii) of the Comcare Act.
Section 6 of the Comcare Act extends the circumstances in which an injury is to be treated as having arisen out of, or in the course of, employment. The provisions of s 6 relevant for this appeal are:-
"6. (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) ......
(b) while the employee:
(i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
(ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
(iii) was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment;
(iv) ......"
To understand these provisions, it is necessary to have regard to the following definitions contained in s 4(1) of the Comcare Act:-
" `place of residence', in relation to an employee, means:
(a) the place where the employee normally resides;
(b) a place, other than the place referred to in paragraph (a) where the employee resides temporarily, as a matter of necessity or convenience, for the purpose of his or her employment; or
(c) any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph (a);
`place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment;"
The Tribunal reached two conclusions either of which would give rise to an entitlement to compensation. Those conclusions are:-
"48. We therefore find under s 6(1)(b)(ii) of the Act that Mr O'Dea was injured while travelling between his place of residence and place of work. We were not addressed on the meaning of the clause "other than during an ordinary recess in that employment". But we notice that if the injury was sustained while Mr O'Dea was temporarily absent from his place of employment during an ordinary recess in that employment, it would be covered by sub-paragraph 6(1)(b)(i) rather than 6(1)(b)(ii). Mr Lenczner did not submit that at the relevant time Mr O'Dea was travelling "during an ordinary recess in [his] employment", so that, even if he was travelling between his place of residence and his place of work, the travel was excluded from the operation of sub-paragraph 6(1)(b)(ii). We find under sub-paragraph 6(1)(b)(ii) that Mr O'Dea was injured while travelling between his place of residence being the place where he normally resided (paragraph (a) of the definition of place of residence) and his place of work."
"59. Thus we find that on 29 January 1995 Mr O'Dea was injured while travelling between the place where he normally resided, and the RAEME barracks, where he resided temporarily as a matter of necessity or convenience for the purposes of his employment. Thus his injury is, under s 6(1)(b)(iii), to be treated as having arisen out of, or in the course of, his employment.
The Tribunal gave well considered and cogent reasons for its decision. The background facts were not in dispute and are set out in the reasons of the Tribunal:-
"5. There was no dispute as to the background facts. Accordingly the Tribunal finds:
(i) Mr O'Dea joined the Australian Army on 27 January 1993 as an apprentice electrical fitter.
(ii) Prior to enlistment he lived all his family life with his parents at Traralgon. The family had moved to a new home in Traralgon about 12 months before he enlisted and that was the address he gave on his enlistment papers.
(iii) For the first two years of his apprenticeship with the Army he was posted to Latchford Barracks near Albury.
(iv) At the end of 1994 there was a passing out ceremony at Latchford Barracks. Mr O'Dea's parents attended that ceremony and he went home with them for the Christmas holidays. After his Christmas leave he did not return to Latchford Barracks. From 16 January 1995 he was posted to the RAEME Training Centre for a further 12 months apprenticeship training, prior to being posted to a unit.
(v) The RAEME trainees were initially required to live in at the barracks, but they could apply for permission to live out. Mr O'Dea was living in as at 29 January 1995. He occupied a single room with shared ablution facilities in the single men's quarters at the RAEME barracks.
(vi) While residing at the RAEME barracks, Mr O'Dea was free to come and go as he pleased, outside the training hours which were from 8.00 am to 4.30 pm Monday to Friday. He was not required to apply for leave in order to leave the barracks over the weekend.
(vii) While residing at the barracks Mr O'Dea was subject to Army discipline. His quarters were regularly inspected to see that they were kept clean and tidy in accordance with Standing Order No 8, Barracks. Overnight guests were not permitted and the areas which civilian guests could visit were limited to the common areas of barrack blocks.
(viii) RAEME Training Centre included the workshops where training took place, which were within a security fenced area, and also, outside that fence, the barracks, mess halls, administration offices and playing fields. The whole unit was under the command of a Commanding Officer.
(ix) The accident in which Mr O'Dea was seriously injured occurred near Yea at 3:30 pm on Sunday 29 January 1995.
(x) Had the accident not occurred and had Mr O'Dea travelled directly to the base he would have been expected to return to the RAEME barracks at about 6:00 - 6:30 pm on 29 January 1995."
The Tribunal considered the definition of "place of residence" and "place of work" as used in the Comcare Act and in particular s 6(1)(b)(ii) and (iii). The Tribunal pointed out, quite correctly, that a person may have two places of residence at the one time, under paragraphs (a) and (b) of the definition of "place of residence". The Tribunal then considered in some detail the evidence before it and concluded:-
"29. Taking all those matters into account, we find:
(i) that as at 27 January 1993 when Mr O'Dea enlisted, his place of residence was at Lot 7 Glenloth Crt, Traralgon;
(ii) we are not satisfied that by 29 January 1995 Mr O'Dea had formed the intention to cease to treat his parents' place as his place of residence.
(iii) As at 29 January 1995 the place where Mr O'Dea normally resided was Lot 7, Glenloth Court, Traralgon, but was residing at the RAEME barracks while undertaking 12 months training as an apprentice electrical fitter with the Army."
The Tribunal then considered the meaning of the phrase "place of work" in the Comcare Act. The Tribunal drew attention to the definition of the phrase as being inclusive. The Tribunal concluded that the whole area covered by the RAEME Training Centre, including the barracks, constituted the "place of work" of Mr O'Dea. The reasons included the following paragraph:
"47. We conclude that, as was said in the cases to which we have referred, a member of the Defence Force who resides in Army barracks, resides (at least temporarily) where his duties are performed. Thus the base can be characterised as both a place where he resides and his place of work. That analysis is consistent with that of the High Court in The Australian Coastal Shipping Commission v Averell [1969] HCA 38; (1969) 122 CLR 348 where the High Court held that a seaman who was injured while returning to his ship was "travelling to his employment" notwithstanding that he was required to live on board ship and did live there. None of the cases to which we have been referred suggest that it is appropriate to separate the base into residential quarters and training quarters in order to establish places where soldiers reside and places where they work. That would indeed create considerable complications in deciding whether mess halls, playing fields and administration blocks were parts of the place of residence or parts of the place of work."
Although these conclusions were sufficient to support the decision of the Tribunal, it went on to consider and apply s 6(1)(b)(iii) of the Comcare Act. The Tribunal made the finding:-
"58. ........ We find that, as a 20 year old trainee, Mr O'Dea had both a place where he normally resided (the family home) and a place where he resided temporarily (the RAEME Training Centre barracks) where he lived while posted to that unit for twelve months training. During the period of his twelve months training we find that the barracks at the RAEME Training Centre was "a place where [Mr O'Dea] reside[d] temporarily as a matter of necessity or convenience, for the purposes of his employment."
This finding was sufficient, by itself, to support the conclusion based on that paragraph of the Comcare Act.
In its notice of appeal, Comcare raised a large number of questions of law. The essential questions were stated as follows:- 1. Whether the Tribunal misconstrued the term "normally resides" in the definition of "place of residence" in s 6(1)(b)(ii) and s 6(1)(b)(iii) of the Comcare Act;
2. Whether the facts found by the Tribunal could support the conclusion that on 29 January Mr O'Dea was normally residing at his parents home in Traralgon.
3. Whether the Tribunal misconstrued the term "place of work" in s 6(1)(b)(ii) of the Comcare Act.
4. Whether the facts found by the Tribunal could support the conclusion that at the time of the collision Mr O'Dea was travelling to his place of work.
5. Whether the Tribunal misconstrued the term "temporarily" in s 6(1)(b)(iii) of the Comcare Act.
6. Whether the facts found by the Tribunal could support the conclusion that at the time of the collision Mr O'Dea was residing temporarily at the barracks.
There were a number of variations to these questions of law stated in the notice of appeal but each formulation constituted a variation to one or more of the questions set out and need not be repeated.
The Tribunal, in exercising its powers was required to find the relevant facts from the material properly before it. The Tribunal was required to construe the relevant statutory provisions. This, essentially, involved determining the meaning of the terms set out above in the context of s 6(1)(b)(ii) and s 6(1)(b)(iii) of the Comcare Act 1986 . The Tribunal was then required to apply the statutory provisions to the facts found. In performing this function, the Tribunal was exercising the powers conferred by the Comcare Act on the person, being the delegate of Comcare, who made the determination on 28 June 1995 and on the person, being another delegate of Comcare, who made the reviewable decision on 6 November 1995. Although both O'Dea and Comcare were represented by counsel at the review by the Tribunal, they were in truth not parties to a dispute being determined by the Tribunal. The true position can be illustrated by reference to many authorities. Reference is made to McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 per Woodard J at 356-358 and per Northrop J at 365-366. The true position is stated clearly by Brennan J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408. In considering the nature of the function of the Tribunal and the application of s 120 of Veterans' Entitlements Act, his Honour said at 424-425:-
"This section is not concerned with an onus of proof. Sub-section (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the Board or the A.A.T., as the case may be. Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s. 120 create any presumption which has to be dispelled by the material before the decision-maker."
It must be remembered that under s 44 of the Administrative Appeals Tribunal Act 1975 , any appeal from a decision of the Tribunal is limited to an appeal "on a question of law". In a number of authorities the High Court has made it clear that in appeals of this kind, the Court should not decide the merits of the appeal; see for example Repatriation Commission v Owens (1996) 70 ALJR 904 per Brennan CJ, Gaudron and Gummow JJ at 904 :-
"The only appeal from that decision (of the Tribunal) lay to the Federal Court but that appeal was limited to a question of law. The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Administrative Appeals Tribunal. This distribution of function is critical to the correct operation of the administrative review process."
See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 and the authorities there referred to namely Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
Difficulties arise in observing these precepts when on an appeal on a question of law the applicant contends that the Tribunal was in error in the construction of words or phrases contained in a statute and in applying those words or phrases as so construed to the facts found. A classical discussion of the problem is discussed in Hope v The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1. Mason J considers the problem in a long passage from 7 to 10. The following extract is taken from page 7:-
"Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J. in Hayes v. Federal Commissioner of Taxation, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v. Cotton's Trustees, which was adopted by Latham C.J. in Commissioner of Taxation v. Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J. then said:
"...... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). The `facts' referred to by Lord Parker ...... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." "
(footnotes excluded)
Counsel for Comcare attacked the findings of the Tribunal expressed in paragraphs 29, 47 and 58 of the reasons of the Tribunal and set out earlier in these reasons. As part of this attack, counsel took the Court to the material before the Tribunal in an attempt to show that the conclusions of the Tribunal were not fully supported by that material. Insofar as this attack involved matters of fact, that attack could not involve a question of law. This was not a case where it was contended that no tribunal could have come to the conclusions reached but rather the submissions were based on a mixture of the proper construction of the relevant phrases contained in s 6 of the Comcare Act 1971 and the material before the Tribunal. This contention involved the meaning to be given to the phrase "place of residence" in the defined sense of "the place where the employer normally resides" or "a place other than the place where the employee normally resides", and "place of work". There was no suggestion that any of these words or expressions had a special or technical meaning. In other words the Comcare Act uses those expressions in the sense that they have in ordinary speech. The meaning to be given to those words, therefore, involves a question of fact, not a question of law; c/f Hope per Mason J at 7-8 and the cases cited in that passage.
However, the real issues, or questions of law, were whether the facts found by the Tribunal came within the ordinary meaning of those expressions. This is a question of law; c/f Hope per Mason J at 8 and the cases cited.
Counsel for Comcare referred to a number of authorities where courts have considered the meaning to be given to expressions such as "place of residence" and "place of work". This was of interest but not of great assistance. In the area of workers compensation legislation, in the past there has been a difference in terminology. In the Commonwealth employees compensation legislation, relevantly, the expressions used have been "in relation to a journey by an employee to his employment by the Commonwealth (irrespective of the place at which the journey commenced)"; see s 32(1) of the Compensation (Australian Government Employees) Act-1973. There have been many authorities of courts, including the High Court, in which the expression "journey by an employee to his employment by the Commonwealth" and the corresponding expression "journey by an employee from his employment by the Commonwealth". Those authorities are of interest but there is an important distinction between the legislation there relevant and the provisions of the Comcare Act 1994 . In the former no identified places were specified at which the journey was to commence or to end. Under s 6 of the Comcare Act, places are identified by which the journey is to be defined. These cases, however, are of assistance in another respect as appears later in these reasons.
The Tribunal gave detailed consideration to the question of the place where Mr O'Dea normally resided and the place where he resided temporarily as a matter of necessity or convenience, for the purposes of his employment. He had been at the RAEME barracks for two working weeks only but had gone back to Traralgon for each of the two weekends of that period. There was no suggestion that he had applied for permission to "live-out" of the barracks. The Tribunal referred to what Wilcox J said in relation to the "legal concept of residence" in Hafza v Director-General of Social Security [1985] FCA 164; (1985) 60 ALR 674 at 680-681 to support the view that Mr O'Dea, having established his "home" or residence with his parents at Traralgon and had the intention of treating it as his "home" or residence, in the sense of intending to return there, the fact that for previous periods he lived elsewhere did not prevent this "home" or residence being the place where he normally resided. The Tribunal was satisfied on the material before it that this home was his place of residence before he joined the army, that he came back to that place, a defined area, whenever he had leave or at weekends, and where a room was kept by his family as his room at the "home". The Tribunal referred to and considered all material whether supporting the claim made by Mr O'Dea or detracting from that claim. Having considered all these matters the Tribunal made the finding set out in paragraph 29 of its reasons. This finding involves a question of fact. There was ample material to support that finding. As was said by Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519 the meaning ordinarily given to the phrases "resides", "usually resides" and "ordinarily resides" is such as to make the result in a given case depend largely upon matters of fact and degree.
Counsel for Comcare sought to challenge that finding by reference to the material before the Tribunal. In my opinion this Court cannot enter into that exercise on an appeal on a question of law. Counsel referred to authorities on the meaning of "residence" but essentially this comes down to a consideration of the relevant facts including the intention of the person concerned. These were considered by the Tribunal. No error of law has been disclosed on this issue.
The Tribunal then considered the expression "place of work". The issue here was whether the place of work should be limited to the RAEME workshops within the security fence of the Training Centre so as to exclude the barracks within the area of the Training Centre. This distinction can have important consequences where, as in the present case, an employee who is living in accommodation provided by the service as part of the requirements of being in the service. While living in that accommodation the employee is subject to service discipline. This is a problem that has been considered from time to time under the general provisions of compensation legislation. Under the Comcare Act the general provision is that the Commonwealth is liable to pay compensation to an employee in accordance with the Act "in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment"; s 14. In s 4 one of the meanings given to the word "injury" is "an injury suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment". These expressions, by judicial decisions, have been given a very wide meaning. Section 6 of the Comcare Act extends, by deeming provisions, the application of these expressions. Many of the other sub-paragraphs of s 6(1)(b), likewise, extend the meaning of those expressions.
A reference to s 6(1A) of the Comcare Act suggests that the use of the word "place" in the expression "place of residence" suggests the place of residence has identifiable boundaries, measured as it were, by metes and bounds. This merely supports the old folk lore that if an employee thought that an injury, being an unexpected step in a disease, was about to occur, to make sure the unexpected event occurred after leaving the front gate of the home on the way to work. In any event the use of the word "place" in either of the expressions "place of work" or "place of residence" connotes a defined area, normally the whole area of the work place or residence or, to put the matter in another way, the area over which the owner or legal occupier of the area has control.
Commencing at paragraph 30 of its reasons, the Tribunal accepted a plea from counsel for Comcare to give guidance to delegates making decisions "as to the meaning to be given to the phrase "place of work" in respect of a soldier living in barracks. As a result the Tribunal gave an extensive consideration to that issue. The Court is not permitted to the same latitude. Nevertheless, there is much to support the opinions expressed by the Tribunal.
In the present case, it is noted that the expression "place of work" is defined in s 4 of the Comcare Act in an inclusive form and includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment. The meaning to the expression "place of work" in s 6 of the Comcare Act is such as to make the result in a given case depend largely upon matters of fact and degree; c/f Gummow J as referred to above. In the context of travelling between a place of residence and the place of work, in general understanding of the expressions, what is connoted are the boundaries of the place of residence and the place of work. This position can be illustrated by examples.
An employee is a member of the Australian Army undertaking training at the RAEME Trading Centre at Bandiana. The employee's place of residence is Wodonga. It is necessary to travel to the training centre. Under s 6(1A) of the Comcare Act the journey starts at the boundary of the land where the place of residence is situated. It does not start when the employee leaves the room of the boarding house constituting his residence. Normally it would be expected the journey would end at the boundary of the land comprising the Training Centre. If the employee suffered an injury as defined in s 4 of the Comcare Act after entering that area but before the employee arrived at the appropriate workshop, no question of journey would arise. The question would be, did the employee suffer an injury arising out of or in the course of the employee's employment.
Similarly, if the employee lived in the barracks at the Training Centre. If, while walking from the barracks to the workshops, the employee suffered an injury, normally it would not be expected to claim that the employee suffered the injury while travelling between the employee's place of residence and place of work. The issue would be whether the injury arose out of or in the course of the employee's employment.
These examples illustrate the artificiality of attempting to distinguish places of work within the place of work of an employee. This is of particular importance in cases involving service personnel, see for example The Commonwealth v Wright [1956] HCA 79; (1956) 96 CLR 536 per Fullagar J at 553-554, Kitto J at 558-9 and the dissenting judgments of Dixon CJ and McTiernan J who held that a soldier's place of employment included the barracks where he lived and was under military discipline.
Counsel for Comcare sought to rely upon the changes in legislation between the earlier legislation which used the expressions "employment" and in other contexts "place of employment" with the usual expression "place of work".
In support of the narrow meaning to be given to the expression "place of work" counsel relied upon opinions expressed by a majority of the justices in Australian Iron and Steel Pty Ltd v Luna [1969] HCA 66; (1969) 123 CLR 305. That was not a case involving workers compensation legislation. There the workman sued his employer for damages on three counts one of which alleged a breach of statutory duty to provide and maintain safe means of access to the place at which the workman was to work. The expression considered was the obligation of the employer to provide "safe means of access to every place at which any person has at any time to work". The trial judge directed the jury to find for the employer. The Court of Appeal allowed an appeal. The High Court, Barwick CJ, Windeyer and Owen JJ, by majority, allowed an appeal from the Court of Appeal, Kitto and Menzies JJ dissented. This authority is not of assistance in this case. In the context of workers compensation the dissenting opinions of Kitto and Menzies JJ are more persuasive. The opinions of the majority were based on the peculiarities of the section and the nature of jury actions as they existed in NSW before the Judicature Act legislation had been introduced.
In my opinion, the Tribunal made no error of law in reaching its conclusion as set out in paragraphs 47 and 48 of its reasons. In normal understanding the place of work is the place at which an employee attends for work as an employee. It is not to be limited to the office or particular workshop where the employee performs duties.
After the hearing of this appeal, the solicitors for Comcare drew my attention to Barlow v Heli Muster Pty Ltd Supreme Court of the Northern Territory, Martin CJ, 21 October 1996, unreported. That case involved a claim for workers compensation under the Work Health Act (NT). The Court had to consider whether the injury to the worker from which he died occurred while the worker was travelling by the shortest convenient route between his place of residence and his workplace. "Workplace" was defined to mean a place whether or not in a building or structure, where workers work. The Magistrate who determined the claim held that the worker was not travelling from his place of residence and was not travelling to his "employment". The use of the word "employment" was in error but was treated by the Court as meaning workplace. The appeal was limited to questions of law.
The Chief Justice discussed the difficulties and limitations inherent in appeals on a question of law. He expressed the view that essentially it was a question of fact for the Magistrate to determine the "place of residence" of the worker. There was evidence to support that finding, accordingly no question of law was involved in that issue.
Of more importance the Chief Justice considered the application of the word "workplace" as defined in the legislation. He referred to earlier legislation which contained the expression "employment". His Honour referred to a number of authorities of the High Court based on the earlier Commonwealth legislation including The Australian Coastal Shipping Commission v Averell [1969] HCA 38; (1969) 122 CLR 348 at 351, The Commonwealth v Wright (above) and Adcock v The Commonwealth [1960] HCA 24; (1959-60) 103 CLR 194 and concluded:-
"In summary, there was no error in law on the part of her Worship in arriving at the view that the deceased was not travelling from his residence at the time he met his death. She did so err in relation to the question of treating the test for the destination of his travel as being his employment rather than his workplace. In the result that makes no difference. Upon the evidence he was not travelling to a place where workers work, he was travelling to a place where workers lived when they were not working."
The facts of that case were very different from the facts of this case. Here, Mr O'Dea was a member of the Australian Army, a fact which formed an important aspect of the case as explained earlier in these reasons. Further, the definition of "workplace" in the Northern Territory legislation is very different to that in the Comcare Act. In the present case, there was material to support the findings and conclusion of the Tribunal that at the time he was injured Mr O'Dea was travelling between his place of residence (as defined) and place of work both in the normal meaning of that expression and within the inclusive provisions of the definition of that expression. The opinions expressed by Martin CJ support the opinions expressed in these reasons that the conclusions of the decision-maker on questions of fact should not be interferred with on an appeal limited to questions of law.
These conclusions entitled the Tribunal to set aside the decision under review and to make the decision which it did. Nevertheless the Tribunal went on to consider whether Mr O'Dea should have succeeded in his claim based upon s 6(1)(b)(iii) of the Comcare Act. The Tribunal found in favour of Mr O'Dea, see that part of paragraph 58 and paragraph 59 of its reasons set out in these reasons. On this issue, it is sufficient for the Court to say it accepts the conclusions reached by the Tribunal for the reasons expressed by the Tribunal.
In the result, the appeal will be dismissed with costs and the decision of the Tribunal be affirmed.
|
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
R M Northrop |
Associate:
Dated: 12 December 1997
|
Counsel for the Applicant: | Mr J Lenczner |
| Solicitor for the Applicant: | Australian Goverment Solicitor |
| Counsel for the Respondent: | Mr G Uren QC & Mr P Rose |
| Solicitor for the Respondent: | Maddock Lonie & Chisholm |
| Date of Hearing: | 10 July 1997 |
| Date of Judgment: | 12 December 1997 |
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