Fekonja v Lucsan Pty Ltd [1994] NSWCC 19; (1994) 10 NSWCCR 339 (1 July 1994)

[1994] NSWCC 19; (1994) 10 NSWCCR 339

Matter No. 32635 of 1992

FEKONJA v. LUCSAN PTY LTD

Compensation Court of New South Wales: Bishop J

1 July 1994

For what injuries compensation is payable - Employment risks - "Arising out of and/or in the course of employment" - Arising in the course of employment - Worker using vehicle to transport fellow workers home - Practice encouraged by employer - Worker at fault - Absence gross misconduct - Workers Compensation Act 1987, section 4

J. Kearney, for the applicant

G. Neilson, for the respondent

Cur adv vult

BISHOP J: This claim is brought by a 23 year old kitchen hand employed by the respondent on the basis of an injury in a motor vehicle accident on 14 July 1990. This accident is alleged to have caused injuries to his back, neck, right wrist, left hip and left and right legs. Total incapacity is claimed from the date of the accident to 22 October 1991 and partial incapacity thereafter. Weekly compensation is sought together with certain lump sums under the Workers Compensation Act 1987, section 66 and section 67 if applicable together with an order for medical and hospital expenses.

The applicant's claim, as I understand it, is brought on several alternative bases. Firstly it is claimed that this tragic accident occurred during a daily or periodic journey within the meaning of section 10 and that the accident occurred without the fault of the applicant. In the alternative it is claimed that the risk of injury on the journey was materially increased by reason of the nature of the applicant's employment. Finally the claim is brought on the basis that the accident itself was in the course of the applicant's employment.

From the point of view of the respondent it was conceded that the accident occurred whilst the applicant was travelling from his place of employment to the place where he proposed spending the night. However, it was submitted that the accident was caused wholly or in part by the fault of the applicant. It was also argued on the part of the respondent that there was no employment induced material increase in the risk of injury. Finally the suggestion that the accident occurred in the course of the applicant's employment was denied.

THE FACTUAL BACKGROUND

Owing to the nature of the claim and the nature of the defences it is necessary to examine this in some detail.

The applicant's background was that he was an apprentice chef by occupation and had been working in this capacity in Newcastle until the time of the earthquake. He then was made aware of an opportunity for employment during the ski season with the respondent at a restaurant at Thredbo. He gave evidence that he made contact with the representative of the respondent, a Mrs Shatzlee, initially on the telephone. There was no argument on the evidence that the employment was simply for the 1990 ski season. The applicant deposed as to the conversation with the respondent's representative as to the nature of the job and as to two specific aspects relating to it. The first of these was that there would be accommodation available at a farm on the Alpine Way on the way to Thredbo. Subsequent evidence revealed that this particular farm was between Jindabyne and Thredbo. Secondly the applicant deposed that he was asked by Mrs Shatzlee whether he had a car. He indicated that he told her that he might be able to use his mother's car and when he ascertained this, Mrs Shatzlee raised with him the question of what can be described as car pooling. The conversation related to the fact that transport wasn't really good between the ski village at Thredbo and the farm and that there was a necessity for an early start. In the conversation Mrs Shatzlee, according to the applicant, indicated that some people staying at the farm would not have cars and that it would be desirable for those people who had cars to take the others to and from work.

At all events the applicant moved from Newcastle and travelled down to start his employment at Thredbo. He commenced on either 7 or 17 June 1990 but indicated that he came down a few days before he was due to start in order to familiarise himself with the area.

The applicant described the accommodation at the farm house and also indicated that some $90 was taken out of each pay for the provision of such accommodation.

According to the applicant's evidence in the initial period of his employment he travelled to and from Thredbo either by his car or a car owned by another employee, Jenny Jefferson. They took it in turns and the other employees would give to the drivers some money from time to time for petrol. The applicant's hours of employment were basically 7.30 am to 6.00 pm five days per week and he deposed that public transport between the farm house and Thredbo village could only be described as irregular.

On the date of the accident, that is 14 July, the applicant indicated that he worked all day and finished at about 6 o'clock. He did not leave immediately to return to the farm house but waited for two other employees who were also living at the farmhouse, Jenny and Jane, to finish their shift. They finished at about 6.30 pm and the applicant then departed driving his vehicle from Thredbo down to the farm, a trip which normally took some 20 minutes.

As they were on this journey and entering into a particular bend the applicant lost control of his motor vehicle and had a head-on collision with a vehicle coming in the opposite direction, as a result of which his two passengers were unfortunately killed and the applicant himself sustained various injuries.

On the question of car pooling evidence was also given by a fellow employee, Kimmaree Hafey. She gave evidence as to the circumstances of her interview for employment as a waitress and that in the initial interview which was with Mrs Shatzlee, she had a discussion with her about the fact that Ms Hafey had a car and would be able use it to give rides to and from the place of employment to other employees.

There was a great deal of evidence given as to actual circumstances of the accident. The applicant's own recollection was on his evidence inhibited by the nature of his injuries. There was evidence before the Court, that at least at some stage, the applicant suspected that the left side wheels of his vehicle had dropped into a pothole. This allegation does not seem to have been pressed strongly. There was a great deal of evidence from the investigating police officers and also the occupants of the other vehicle involved in the accident. To analyse such evidence in detail is not apposite in view of the nature of such evidence and its complexity. However, a number of factors do seem to emerge from the evidence and these factors can be summarised in the following fashion.

1. The applicant had been licensed for a few years prior to the accident and there is no evidence to suggest that he was an incompetent or inadequately trained driver.

2. The balance of the evidence indicates that the weather conditions at the scene of the accident were fine and dark. There is a suggestion on the evidence that other drivers approaching the scene of the accident a little earlier had had their windscreen wipers on the intermittent setting, but the balance of the evidence indicates that it was not in fact raining at the scene of the accident when the accident occurred.

3. The physical examination of the scene of the accident gave no evidence of a pothole on the left hand side of the road going towards the farmhouse prior to the point of impact.

4. There is evidence that at some distance on the Thredbo side of the point of impact the width of the road slightly narrowed because the bitumen had been replaced sometime prior to the accident and the accident itself took place on an older area of bitumen. There is also evidence that where this older area of bitumen was leading up to the point of impact there was a drop in the shoulder of the road which drop in places may have been as much as three inches. Evidence also indicated that after the accident the local authorities had taken steps to repair the shoulder of the road but whether that was because of the circumstance of the accident or because of damage done to the shoulder of the road with traffic being directed around the scene of the accident is not established.

5. The evidence from the witnesses as to the exact cause of the accident was varied. One witness noted that on a test run it was possible to drive in the direction in which the applicant was travelling into the curve in question at 100 kilometres an hour without any trouble. Another witness examined the tyres of the applicant's vehicle and found no evidence of foreign material on such tyres indicative of the vehicle having left the surface of the road before the accident. Another witness found no physical sign of the applicant's vehicle having left the road but this evidence was very much clouded by the traffic which had been directed around the scene of the accident causing consequent marks and possible damage to the shoulders of the road on both sides of the point of impact. Another view was that the applicant had approached the curve in question at an excessive speed, seen the oncoming lights of the other vehicle, braked suddenly and lost control of his car. A further hypothesis put forward was that in fact the left side wheels of the applicant's car had dropped into the shoulder of the road and that in attempting to regain the surface of the road he had lost control and collided with the oncoming car.

6. There is no doubt on the evidence that the collision took place on what was for the applicant, the incorrect side of the road.

7. The applicant's own evidence was that he was travelling at some 80 kilometres an hour as he approached the curve.

8. There is no evidence that the oncoming vehicle was travelling at an excessive speed or on its incorrect side of the road.

9. The surface of the road as far as the bitumen was concerned was generally described as good and of adequate width to enable two cars to pass each other without any undue problems.

ENTITLEMENT TO COMPENSATION

In approaching the issues it is convenient to deal separately with the arguments arising under section 10 (the journey section) and the arguments dealing with the course of the employment.

A) THE JOURNEY QUESTION

For the purposes of section 10 there is no doubt on the evidence, and it was not seriously contested and I so find, that the accident occurred whilst the applicant was on a journey from his place of employment to his place of abode within the meaning of that term in section 10.

The issue which firstly arises is the application of section 10(1A) which basically operates to disqualify the applicant from an entitlement to compensation if the injury was caused partly or wholly by his own fault. The concept of "fault" is dealt with in section 10(6) and is expressed to include: a) negligence or other tort; b) any failure to take reasonable care for the worker's own safety.

Broad findings as to the circumstances and evidence relating to the accident have been set out above. To this should be added the applicant's own evidence that he was familiar with the road having driven up and down it for the several prior weeks of his employment. The evidence as to whether the left hand wheels of the applicant's vehicle left the road prior to the impact is inconclusive. I find no evidence to indicate that the other vehicle concerned contributed to the cause of the accident. The evidence of Senior Constable Nicholls, although subject to careful attack by the applicant's counsel, I found in general terms to be persuasive. I also accept the evidence that there was no reason why two vehicles could not at the point where the impact occurred have passed each other travelling in opposite directions without difficulty. Whether the applicant was unaware of the narrowing of the road and his wheels dropped into the shoulder, or whether he made an error of judgment in moving too far to the left or whether he was simply travelling too fast, braked suddenly and lost control of his vehicle I am satisfied on the total evidence before the Court, that under the conditions the applicant was at the time travelling too fast for the prevailing circumstances and that this speed was such as to contribute to the particular accident when the emergency arose. Accordingly I am satisfied on the balance of probabilities that the applicant was at least partly at fault within the meaning of the section for this unfortunate accident.

This now requires me to turn to the other arm of the journey-provision which was put before the Court on the applicant's behalf.

The applicant indicated that on the evening of the accident he finished his duties at 6.00 pm and then waited till 6.30 pm to collect his passengers and take them back to the farm house. There was some issue as to whether in fact his time sheet revealed that he was still being paid up to 6.30 pm. I do not however consider that this is material and the evidence is such as to support an argument that the applicant in fact delayed his departure from his place of employment in order to take some fellow employees home. It was argued on the applicant's behalf that the evidence of the other witnesses, particularly those from the investigating police, was such to support the argument that this delay in the commencement of a journey which would normally take about 20 minutes was sufficient to increase materially the risk of injury on the journey on the whole because of the change of weather conditions, the likelihood of ice, sleet, rain and the like. There is evidence that the driver of the other vehicle involved in the accident did have his windscreen wipers on intermittently before he got to the point of impact. The evidence however indicates that at the point of impact the weather conditions were dry and the evidence of Sergeant Haugh does not really support the careful argument about a material increase in the risk of injury. I am not satisfied on the evidence that sufficient has been put before the Court to bring this claim within section 10(1C).

Accordingly I am of the opinion that the applicant's claim under section 10 of the Act fails.

B) THE COURSE OF THE EMPLOYMENT ARGUMENT

The applicant's own evidence with regard to the circumstances of his employment interview with relation to car pooling has been set out above. This evidence is supported in general terms by the evidence of Ms Hafey and also supported substantially by the evidence of Ms Adair. Particularly in the absence of any contrary evidence from the respondent it is reasonable to infer from the evidence of these three witnesses that the respondent encouraged car pooling for the purpose of aiding transport of its employees from the various accommodation facilities that were arranged in the alpine area. Such a conclusion would be extremely logical also bearing in mind the well known logistical difficulties in the Alps in the snow season and the hours of employment which the staff were required to attend in order to service the restaurants in the Alpine Village.

It is not really of benefit for the purposes of this judgment to review the numerous cases on the question of what is meant by the course of employment as this exercise has been fully undertaken in the appellate courts in recent times. I refer in particular to HATZIMANOLIS V. ANI CORPORATION LTD [1992] HCA 21; (1992) 173 CLR 473. Reference should also be made to MCCURRY V. LAMB (1992) 8 NSWCCR 556 AND INVERELL SHIRE COUNCIL V. LEWIS (1992) 8 NSWCCR 562. See ALSO WILSON V. LOWERY (1993) 110 FLR 142.

In these decisions the development of the concept of the course of employment from cases such as PEARSON V. FREMANTLE HARBOUR TRUST [1929] HCA 19; (1929) 42 CLR 320, WHITTINGHAM V. COMMISSIONER OF RAILWAYS [1931] HCA 49; (1931) 46 CLR 22 and DANVERS V. COMMISSIONER FOR RAILWAYS [1969] HCA 64; (1969) 122 CLR 529 has been considered. The tests, as established in the cases of the course of employment not only including the actual terms of the contract but also matters reasonably incidental thereto, are fully set out particularly in the High Court decision in HATZIMANOLIS. It is, however, clear that the "incidental principle" is now regarded as a conclusion and not a test.

It is also apparent from this course of authorities that the interpretation of the term "the course of employment" has gradually become more liberal.

Consideration of these authorities leads to two conclusions on the facts as found in the evidence in this particular claim.

Firstly the evidence as I have indicated leads to the conclusion that for no doubt practical reasons the respondent encouraged its employees, including the applicant, to make use of their motor vehicles to aid in the transport of fellow employees to and from the accommodation provided by the respondent and to the place of employment. This would seem to me to be sufficiently proximate to the course of the employment as being evidence of an activity which the applicant was encouraged or expected to carry out by his employer.

The second conclusion relates to the reformulation of the various tests in the decision in HATZIMANOLIS. Both that case and the decisions in MCCURRY and in LEWIS involved situations where the particular worker had been sent by his employer to a place remote from the normal place of employment for a particular period. This is slightly different to the situation in the current instance where the contract of employment was for a limited period of time in a remote area where accommodation was provided, albeit at a cost, by the respondent. It does not seem to me that this factual distinction is of any materiality. What follows is that the accident in question occurred during an interval between discrete periods of employment in an overall employment situation. The encouragement by the respondent of the car pooling to aid in the efficiency of its business is sufficient in my view to bring the journey on which this unfortunate accident occurred within the course of the employment in view of the fact that the applicant delayed his start of the journey in order to carry his fellow employees as passengers to the accommodation provided by the respondent.

The HATZIMANOLIS reformulation is expressed to be applicable in the absence of "gross misconduct". The ambit of this concept is not developed but the ordinary meaning of the term would seem to involve a degree of purposeful conduct by the applicant which is not established by the evidence available as to the cause of the collision.

For all these reasons I am of the opinion that the accident in question occurred in the course of the applicant's employment by the respondent.

QUANTUM OF COMPENSATION

The evidence indicates that as a result of the accident the applicant was rendered for practical purposes unconscious and was taken by ambulance to Cooma Hospital where a pin was inserted by open surgery into a fracture of his left femur. He was in Cooma Hospital for some 11 days and was discharged on crutches. He had other minor lacerations but the evidence also indicated complaints of pain in his neck and his low back and his right wrist. Following his discharge from Cooma Hospital he returned on crutches to Newcastle and came under medical treatment there from his family doctor and later from an orthopaedic specialist, Dr Tarrant. He was on crutches on the evidence for six to seven months during which time he underwent physiotherapy and hydrotherapy treatment. Subsequently he had to use a walking stick for some five months. During this period he had pain in his leg as well as the other parts of the body referred to above. At one stage he gave evidence that the nail that was inserted in the fracture site was actually protruding and seemed to be causing problems in his left knee. The nail was removed in hospital on 26 June 1991 in Newcastle and he was discharged from hospital following this procedure on 28 June 1991. His evidence indicates that after a period his knee problems started to get better as did the complaints in his neck though the low back continued to give him some trouble for a period as did the right wrist. There is also some evidence about migraine headaches but the evidence does not in my view indicate that any migraine condition from which the applicant may have suffered was affected by his injury or the treatment therefore.

On considering the oral evidence and the various medical reports put before the Court I am not satisfied that the evidence indicates any degree of permanent loss of efficient use or impairment in any part of the applicant's body other than his left leg. In this regard I think it is appropriate to accept the assessment of Dr Tarrant of a 15 per cent permanent loss of the efficient use of the left leg at or above the knee. The applicant's claim for permanent impairment to his back in my view is not established.

This assessment will enable the applicant to exceed the threshold under section 67. I have outlined above the course of his treatment and I have also taken into account his age. There is I think on balance sufficient evidence that he has a minor shortening of his left leg as a result of the injury and I am satisfied that in the future he will have a disability in his leg which will, to a moderate extent affect his activities and cause from time to time symptoms in his future working life. I consider that the appropriate proportionality for section 67 is in the general area of 1:3.

With regard to weekly compensation it seems that in about October 1991 he resumed his normal job as an apprentice chef and there is no evidence of economic loss beyond that date. However, in his evidence he indicated quite openly that he would have been fit to carry out his normal activities about three weeks after the operation to remove the pin from his leg. I accept this as the position and with regard to his claim for weekly payment I consider that he is entitled to an award on the basis of total incapacity from the date of injury to 16 July 1991.

The award in the applicant's favour will accordingly be in the following terms.

I find that the applicant received injury in the course of his employment on 14 July 1990. As a result of such injury he was totally incapacitated from that date till 16 July 1991. The agreed current weekly wage rate is $389.28 and the award of weekly compensation is accordingly as follows: $389.28 per week from 15 July 1990 to 14 January 1991, $192.10 per week from 15 January 1991 to 31 March 1991 and $194.60 per week from 1 April 1991 to 16 July 1991.

I order the respondent to pay interest on half this award of weekly compensation at the median rates prescribed for that period under the Supreme Court Act 1970.

With regard to the applicant's claim under section 66 I find that he has as a result of the above injury sustained 15 per cent permanent loss of the left leg at or above the knee and I award under section 66 the sum of $10,400.63. I order that the respondent pay interest on this amount at the rate of 8 per cent from 14 July 1990 to date.

I make an award in the applicant's favour under section 67 in the sum of $15,000. I apportion $10,000 to past pain and suffering and order the respondent to pay interest on this component from 14 July 1990 at 4 per cent.

Medical and hospital expenses section 60.

Costs Part 29.

Solicitors for the applicant: Moroney Rutter & Mantach

Solicitors for the respondent: Hickson Lakeman Holcombe