Calvert v Soden [1994] NSWCC 9; (1994) 10 NSWCCR 139 (25 March 1994)

[1994] NSWCC 9; (1994) 10 NSWCCR 139 (Matter no 5542-93)

CALVERT v. SODEN

Compensation Court of New South Wales: Johns J

25 March 1994

For what injuries compensation payable - Journey injuries - Journey between place of abode and place of employment - Place of abode - Injury on common property of home unit residence - Workers Compensation Act 1987, section 10(4)

W.J. Carney, for the applicant

M.S. Choat, for the respondent

Cur adv vult

JOHNS J: The applicant makes a claim for weekly payments of compensation together with lump sum entitlements pursuant to section 66 and section 67 as a consequence of an injury on 22 January 1992 when the applicant fell on a step on the common property of a block of units where she resides.

The issue

There is no dispute in this matter in regard to the question of injury or incapacity. The single issue to be decided relates to the application of the circumstances of injury to the provisions of section 10(4) of the Workers Compensation Act 1987.

Section 10(4) was amended by the Workers Compensation (Amendment) Act 1989 which commenced on 31 March 1990 and provides as follows:

"For the purposes of this section, a journey from a worker's place of abode commences at, and a journey to a worker's place of abode ends at, the boundary of the land on which the place of abode is situated."

The facts

The applicant on 22 January 1992 was a nursing sister employed by the respondent. At 7.15 am on this day the applicant had left her ground floor unit with the intention of proceeding to her place of employment.

After she had locked the front door and the screen door of her apartment she began to descend a small flight of stairs on the common property and walk to the end of the property where her car was parked under its designated car port. She was then to drive her car up the driveway onto the road and then to the respondent's premises.

As she reached the bottom step she slipped and fell and suffered a complicated fracture of her right ankle. An ambulance was called and she was transported to hospital where an operation took place. She remained in hospital for two days. Copy photographs of the entrance and steps are depicted in Exhibit D.

There is no doubt that the applicant suffered a serious injury to her ankle which required the insertion of a plate and screws. As already mentioned the evidence in regard to the question of injury and incapacity is not in dispute. The medical evidence makes it clear that there is significant residual disability. The ankle is stiff, the plates and screws remain and are responsible for some discomfort that she suffers. She has the risk of developing osteo-arthritis of the right ankle.

The applicant remained unfit for her employment until 8 April, whereupon she returned to work and engaged and continues to engage in all the duties that are required of her. However this should not diminish her permanent discomfort in the right ankle, particularly in the mornings and the residual loss of function of her right leg below the knee.

Reasons for judgment

The question of where the line was to be drawn between the place of abode and the journey has been the subject of litigation from the time of the earliest journey provisions. In Thornley v. Sydney Waterfront Watchmen's Association [1942] 16 WCR (NSW) 57 Moffitt J held that the "place of abode" was to be construed in the popular sense and while doing so it was all important to keep in mind the nature of the remedy proposed by the Act itself (see Wentworth Securities Ltd v. Jones [1982] UKHL 5; [1980] AC 74 at 105-106 per Lord Diplock and Clarke v. Bailey (1993) 30 NSWLR 556 at 567). The applicant in that case lived in a block of units and was injured whilst he was inside the block although outside the particular unit where he resided. Moffitt J held that the worker was not injured on a journey between his place of abode and place of employment. What was significant in that judgment were the rights of the occupier which were inseparable from the conception of the complete dwelling place; for example the right to use the common property and the common facilities on the property. The applicant's flat stood with other flats with a common roof and a common outer wall. These were held to be inseparable from the conception of a complete dwelling place and while he was in the exercise of any of these rights and still within the building, that is in the act of using the common entrance door, his Honour thought that he was still within his place of abode and could not then be said to be on a journey from his place of abode to his place of employment.

Thornley's case was cited with approval by Street CJ in Bowden v. Murdoch's Ltd [1951] 25 WCR (NSW) 1. The circumstances were not unlike Thornley's case and the Court followed the decision in Thornley. Street CJ stated at 5:

" ... In the present case I think it is clear that the Legislature had in mind the necessity of 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 a 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 is obvious that all the courts that have been called upon to consider the meaning and effect of the language used in section 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."

The Court adopted the reasoning of Perdriau J in Fleury v. The Select Cake Service [1950] 24 WCR (NSW) 15 that the applicant's journey commenced when he left the home building or its precincts and in that regard was in agreement with the judgment of Moffitt J in Thornley.

A further legislative change came in 1964. Section 7(1)(g) deemed a worker's journey to have commenced, in the event that he lived in a unit, at the front door of the particular unit where he lived or, in the event that he lived in a house, at the front door of the house.

The Workers Compensation Act 1987, as it was originally enacted contained similar provisions to section 7(1)(g) of the 1926 Act. Section 10(4) of the 1987 Act as it was originally enacted provided that a worker who resided in a flat or home unit commenced his journey at the exit of that flat or home unit. In every other case where the worker's place of abode was within a building or structure a journey from a worker's place of abode commenced at the exit of that building or structure. Thus there was a distinction between workers who resided in home units and those who resided in houses. A journey from a home unit commenced at the front door of the unit whilst on the other hand a worker who resided at a house commenced his journey when he left the front door of the building itself.

Had the provisions of section 10(4) remained unchanged the applicant obviously would have been entitled to an award of compensation. However the amendment to section 10(4) by the Workers Compensation (Amendment) Act 1989 stated that the place of abode is to include the boundary upon which the house or block of units is situated. If the mere words "place of abode" as they stood in the original section 7(1) commenced at the boundary upon which the premises were situated, the 1989 amendment to section 10(4) has legislated those decisions referred to above into the present Act.

The Second Reading Speech in Hansard on 21 November 1989, in so far as it can be used as assistance in determining the legislative intent, makes it clear at 12,928 that the provisions in accordance with the 1964 amendment were inappropriate as employers were not to be held liable for accidents that happened in places such as the worker's own front porch, garage or driveway. It was said that accidents of that nature were not related to the hazards of the journey.

It is clear that the section as it now stands has rationalised the termination of journeys between normal residence such as private houses and flats. In both cases the termination of the journey is the boundary of the land upon which either the private house or the flat building stands. It is clear that once the boundary of the land has been crossed on which the flats were located the journey has either begun or ended.

McGrath CJ in Anderson v. Thiess Contractors Pty Ltd, Compensation Court, No. 13475/91, 25 March 1993, unreported, concluded that there was no distinction to be made between the boundary of a block of home units and the boundary upon which a home is situated when consideration was to be given to the commencement or ending of a journey to or from a place of employment.

As a result the artificiality that is to be observed in Williams v. Ducon Condenser Ltd [1949] 23 WCR (NSW) 122 is again to be expected or assumed. In that case the applicant used her bicycle in journeying to and from work. On the day of injury she was returning home from work. The applicant lost control of her bicycle when it passed over an uneven surface outside the gate of her home and she received injuries by falling onto the driveway inside the gate. The Commission found that the injuries were received at the applicant's place of abode and not between her place of employment and place of abode and accordingly compensation was refused.

Undoubtedly the applicant in this case had the clear intention when she was leaving her doorway to proceed directly to her place of employment. Unfortunately due to the provisions of the Act as they now are she is to be deprived of entitlements to compensation in relation to a serious injury and a significant disability to her right ankle.

It is gives me no pleasure to make an award for the respondent.

Solicitors for the applicant: R.L. Whyburn & Associates

Solicitors for the respondent: Heath Innes