Hughes v Civil & Civic Pty Ltd [1995] NSWCC 1; (1995) 11 NSWCCR 27 (14 February 1995)

[1995] NSWCC 1; (1995) 11 NSWCCR 27 (Matter No. 10500/93)

HUGHES v. CIVIL & CIVIC PTY LTD

Compensation Court of New South Wales: Davidson J

11 August 1994, 31 January, 13-14 February 1995 (H)

14 February 1995 (J)

Persons entitled to compensation - Other cases - Worker who is accredited trade union representative - Injured while carrying out authorised duties as such a representative or on an associated journey - Workers Compensation Act 1987, section 12

Journey injuries - Worker who is accredited trade union representative - Injured on journey associated with authorised duties as such a representative - Workers Compensation Act 1987, section 12

Words, phrases and maxims - "associated journey" - Workers Compensation Act 1987, section 12

M.J. Perry, for the applicant

D.A. Baker, for the respondent

Ex tempore

DAVIDSON J: The applicant, John Brian Hughes, claims compensation from the respondent, Civil & Civic Pty Ltd, arising out of an incident in which he was shot whilst within the confines of the three storey block of units in which he resided.

At the time of this occurrence on 8 April 1991, the applicant was employed by the respondent as a carpenter upon a construction site which has been described in the evidence as the Corn Exchange building, that site being in Sussex Street in the City of Sydney. The applicant was a duly elected union representative of what was then the BWIU for that building site.

As a consequence of the injury which the applicant suffered, a bullet having made a furrow in his head, he was admitted to hospital for about a week or so, and it is his claim that since the injury, he has been totally incapacitated for all forms of work.

The applicant has not received any workers compensation payments directly from the respondent's insurer, QBE Workers Compensation (NSW) Ltd, since the date of the injury.

He said, however, that he had been paid by the respondent for some period after the injury; the precise period he could not recall. At one point he said that he believed that it had been for over 12 months, and at another he nominated it as being some seven or eight months. In this period, he said he was paid his normal wage.

Further, it was the applicant's evidence that he had received certain payments from CIC Insurance Co from the date of the accident up until what the applicant said was "some 12 months ago" from the date that he gave his evidence on 31 January 1995. He then, however, said that it was for the period of three years from the date of injury in April 1991 up until April 1994, and that he received something in the order of $290 to $300 per week. Thereafter, he appears to have been in receipt of a disability pension payment.

A number of applications for determination were filed on behalf of the applicant by his solicitors, the last on 4 August 1994. That last application claims weekly compensation from the date of injury pursuant to sections 36, 38, 39 and 40, together with interest, and also claims lump sums under section 66 for 30 per cent permanent impairment of the brain, which should properly have been described as permanent brain damage, and in respect of 14 per cent loss of hearing in the right ear.

Further lump sum compensation is claimed under section 67 and, again, interest is claimed in respect of the lump sums.

Medical and hospital expenses under section 60 are also claimed.

In paragraph 5 of that last application, it is alleged:

"At the time of the injury the applicant was employed by the respondent and was performing duties as a trade union representative pursuant to section 12 (a) - (c) of the Act."

Section 12 of the Act is as follows:

"If:

(a) a worker is an accredited representative of a trade union of employees, or other organisation of employees, of which any person employed by the worker's employer is a member;

(b) with the consent of or at the request of that employer or pursuant to an industrial award or agreement, the worker is carrying out his or her duties as such a representative (whether at the worker's place of employment or elsewhere) or is on an associated journey; and

(c) the worker receives a personal injury while carrying out those duties or on that journey,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly."

It is conceded on behalf of the respondent that the requisite matters in section 12(a) are fulfilled in this case. It is further acknowledged that, within the terms of section 12(b), the applicant at times had the consent of his employer and, I would infer, pursuant to an industrial award or agreement, to carry out his duties as an accredited representative of the BWIU both at the worker's place of employment and elsewhere.

It is to be noted at the outset that the applicant has not sought compensation pursuant to the rights of a worker under section 10 of the Act. Indeed, I understood the applicant conceded that, by virtue of the physical location at which the shooting took place and by virtue of section 10(4), he could not succeed as at that time when he met with his injury he was not on a journey within section 10.

The applicant's dual role as a worker in the occupation of carpenter with the respondent and as a union representative afforded him the benefits of section 10 during the periods the applicant was journeying at the relevant times between his place of abode and his place of employment at the Corn Exchange site in Sussex Street. He also had the benefit of the protection given by section 12, if the facts fitted the situation, while he was either carrying out his duties as a union representative or was on an associated journey at the time he met with an injury.

On 8 April 1991, the applicant was residing at Unit 45, 580 Elizabeth Street, Redfern. At that address there stood a three- storeyed unit block, and he lived on the middle floor of the three.

There was, in my view, some slight inconsistency in the applicant's evidence as to precisely where he was when he suffered the injury by being shot. It may be that the evidence is capable of the interpretation that he was at one or two different positions in the building; however, it is undoubtedly the case that he was still within the confines of the building itself. He certainly had not gone beyond the boundary of the land on which the building stood.

It would seem to be accepted by the parties that the applicant was in the foyer on the ground floor at the time that he was shot.

The applicant's argument is that the evidence given by himself, that of the three lay witnesses called in his case, Mr Adams, Mr McGahan and Mr Maxwell, and some of the documentary evidence which formed part of the case, more particularly Exhibit L, the hospital patient's property receipt book, establishes that he was, at the time of his injury, carrying out his duties as a union representative and also, or alternatively, on an associated journey within the meaning of section 12.

The respondent argues the contrary. The greater proportion of the addresses surrounded the alternative of "an associated journey" rather than the question of whether or not the applicant was carrying out his union duties.

Mr Baker, on behalf of the respondent, did not expand greatly upon the defence that it could not be found that the applicant was carrying out his duties as a union representative, rather he contented himself with submitting that the evidence did not support a conclusion as a question of law that that was so. He submitted that if the applicant was to succeed, it must be, if at all, on the second limb of the provision, that is to say, that the applicant was on an associated journey.

Indeed, the first submission of the respondent was that the applicant was, at the time that he was shot, not proceeding, as the applicant swore he was, to the union offices, but rather was proceeding

to his work as a carpenter at the Corn Exchange in Sussex Street. As this was the first submission of the respondent, those dealing with the inapplicability of section 12 only becoming relevant if that was not upheld.

Clearly, as I have stated, the applicant acknowledges that if the finding of fact were, as submitted by the respondent, that the applicant was going to the Corn Exchange site, he would fail for the reasons I have given.

Mr Perry, on behalf of the applicant, acknowledged that there were difficulties in the applicant's case in establishing that he was not on his way to his workplace as a carpenter, but rather was going to the union offices. Tendered in the respondent's case, inter alia, in Exhibits 1, 2 and 4 were documents which the respondent submits support the conclusion that the applicant was going to work at the Corn Exchange.

The first of those, Exhibit 2, was a compensation claim form which the applicant acknowledged was signed by him and which bears the date 10 April 1991, two days after the injury. In it there are answers to the questions asked which, it is submitted by the respondent, establish that the applicant was on his way to work and not to the union office.

Exhibit 3 was a statutory declaration sworn on 3 May 1991 by the applicant, which says that at the time of the shooting the applicant was "on the way to work".

Exhibit 4 was the original application for determination issued on the applicant's behalf by his solicitors and filed on 26 August 1993. In paragraph 5 it is claimed that the applicant was on his way to work when he suffered his injury.

The applicant was confronted with each of these three documents in cross-examination. Whilst he was prepared to acknowledge, in respect of the statutory declaration and the declaration forming part of the compensation claim form, that the entries which he said was not his handwriting said that he was on his way to work, he would not resile from his evidence given in chief that at the time of his injury he was on the way to the union office for two purposes: to deposit a sum of money which he had collected by way of union dues from workers on the respondent's building site and also to attend two meetings; one at 7.30 am with Mr McGahan concerning industrial matters related

to the Corn Exchange site and a further meeting later that morning which was described as an "area one meeting".

The first determination is, therefore, as to whether or not the applicant is to be believed as to the nature of the money that he had on him at the time of the shooting, and where he was going.

In view of this documentary evidence, which is of a relatively contemporaneous nature, doubts must exist as to whether or not the applicant should be believed. In respect of Exhibit 4, the original application, it was put to him that he had changed his story between giving instructions for his claim for compensation which gave rise to the first application, and the final application, which was almost exactly one year later.

I have, therefore, deliberated at some length and with caution on this initial question. It is by no means beyond the realms of possibility that the applicant has endeavoured to cut his cloth to suit the circumstances and the law. There is in his favour the fact that there is corroborating evidence from all three lay witnesses called in his case in one way or another. It is not necessary to review that evidence in detail.

There appears to be some inconsistency in various parts of the evidence between those lay witnesses and the applicant, and between their own evidence when compared with the others. On the other hand, there is an uncanny likeness in some of the evidence, almost to the exact same evidence given by some of them.

I have weighed up these matters. I have also taken into account as being of some significance Exhibit L, the Royal Prince Alfred Hospital patient's property receipt book. Again, that evidence is not all one way and cannot be taken to be solely determinative of the question. It is consistent with the applicant's story that he had on his person the sum of $1,095 and personal papers when he was admitted to the hospital straight after the injury.

The applicant had said in his evidence that that amount of money was the union dues that he was taking to the union office.

It is, to me, a reasonably substantial amount of money and, although it would not be entirely uncommon that an individual in Mr Hughes' position might have that amount of his own money on his person, it seems to me that such a large sum is more likely to be that

which he collected, as he swears he did, by way of union dues, rather than his own day-to-day cash that he would carry upon him.

There was no cross-examination of him on this matter, and the evidence stands as given by him and as in the Exhibit L.

If I am to reject the applicant's sworn testimony and conclude that he has lied and that he was going to the Corn Exchange, as is the evidence in the documents Exhibits 2, 3 and 4, then one must also brand the other three lay witnesses, more particularly Mr McGahan and Mr Maxwell, as liars.

I am not prepared to do that on the state of the evidence. Whilst the balance is very fine I have come to the conclusion that the applicant should be accepted when he says that he was going to the union office and was taking the sum of $1,095 there in the form of union dues which he had collected, rather than that he was going to the respondent's work site at the Corn Exchange.

In doing so, I believe that it is not improbable that the applicant, so far as Exhibits 2, 3 and 4 are concerned, may, at the time that they were completed, have said that he "was going to work". "Going to work" for him, of course, had two meanings. He obviously would be going to work if he was heading to the Corn Exchange to do his job as a carpenter for the respondent, but equally, it seems to me, by virtue of his dual role, it would be proper to say that he was going to work when he was engaged in his union duties or indeed on a journey associated with them.

I believe, therefore, that there is a proper explanation for those documents consistent with an acceptance of the applicant's account. Having done that, there becomes the question of considering the respondent's further submissions as to whether or not the applicant should succeed under the two limbs of section 12 or either of them.

Having come to the conclusion the applicant was taking the union dues to the union office when he met with his injury, I believe that he was then carrying out his duties as a union representative. His job was to collect the dues and, inferentially, to assure their safekeeping until such time as he handed them over to the union at its office.

I believe therefore that, having collected that money during the week before the Monday upon which he was injured, it was part of his duties to safekeep them. It was not unreasonable that he should do so by keeping it at home over the weekend and that, in setting out to

take the dues to the union office on the first available occasion on early Monday morning, he was carrying out his duties as a union representative.

Without for one moment endeavouring to be definitive about it, and at the risk of making an odious comparison, what he was doing may be similar to the following example. If a person who was employed as a worker in a city business was required as part of his or her duties to do the banking on the way home on a Friday afternoon, and for one reason or another left it too late and the bank was shut, took the money home and at some point, be it during the weekend or early on the Monday morning, was either depositing the money in an ATM machine or the bank, and was injured at the time, it would seem to me reasonable to conclude that that person was then doing something which arose out of or in the course of his or her employment.

In the same way, it seems to me that the applicant should be regarded as carrying out his duties within the meaning of section 12. I hasten to add that this example does not represent the sole basis of the decision to which I have come, that the evidence in this case bears out the finding of law which is necessary under section 12 in respect of the applicant's circumstances.

As to the question of whether or not the applicant should succeed on the alternative basis that he was "on an associated journey" within the meaning of section 12, Mr Baker expanded the respondent's argument at some length as I have said before. I might belatedly acknowledge, so far as the respondent's submission on the question of whether or not the applicant was going to work at the Corn Exchange or whether he was going to the union office is concerned, that there are a number of other matters which the respondent said pointed against the conclusion to which I have come, in addition to the documents which were Exhibits 2, 3 and 4.

Mr Baker referred to the fact that there was no explanation in the evidence of what the applicant was going to be doing between arriving at the union offices when they opened at 7.00 am until the meeting that he said he had arranged previously with Mr McGahan at 7.30 am. It was suggested by Mr Baker that the likelihood was that the applicant would first have gone to the Corn Exchange, particularly as his evidence was that when he left his unit on the day of the shooting he had gathered up his gear, and that he would have deposited his gear there then, as the union office was only a very short distance away in Kent Street, he would have proceeded there.

Mr Baker had also referred to the inconsistency, of which I in part have made mention, between the evidence of some of the lay witnesses as to the times of the respective meetings, more particularly the "area one meeting" and also to the inherent inconsistency in the evidence of Mr Adams and the other witnesses, more particularly the applicant. Mr Adams had said that it was around about 7.15 am that he got the phone call and went to the "area one meeting" to tell it that the applicant's son had rung in to say the applicant had been shot. The evidence of the other witnesses was that the "area one meeting" was more likely to have been after 9.00 am.

In addition Mr Baker pointed to Mr Adams' statement, which is at 5.4 of the Transcript, where he said that when the applicant's son rang up, the son said that the applicant was shot going to work.

I have not overlooked those submissions, and I belatedly mention them, unless it be thought I have.

Reverting now to the further submissions of the applicant as to whether or not the provisions of an associated journey are fulfilled, it was submitted by the respondent that this case must be approached having in mind the provisions of section 10 of the Act, and the words "associated journey" ought be interpreted much in the same way as the Legislature and early case law has made clear.

In brief that amounts to this, that the associated journey within section 12 in this case did not commence until the applicant had passed the boundary of the land on which his place of abode was situated. Those are the concluding words of section 10(4).

Mr Baker, in a very careful analysis, referred me to a number of sources and gave a general chronological review of the law, in particular section 7 of the 1926 Act and section 10 of the 1987 Act. He submitted that section 10 and the definitions therein provide the proper guidance for the interpretation of the words "associated journey" insection 12.

Mr Baker and Mr Perry, who appeared on behalf of the applicant, said that their researches had not unearthed any decided case in respect of an associated journey in section 12.

Mr Baker, in his chronological review, drew attention to the text of M.Boulter Workers Compensation Practice in New South Wales, Sydney, Law Book Co, 1966 and to C.P. Mills Workers Compensation (New South Wales), (2nd ed), Sydney, Butterworths, 1979, at 208. He also referred to Mills Workers Compensation New South Wales Service Sydney, Butterworths, 1987, e.g. at 1283, 1284, 1394 and 1399.

Mr Baker referred to a decision of the Full Court of the NSW Supreme Court in BOWDEN V. MURDOCH'S LTD (1951) 51 SR (NSW) 423. In Bowden's case, Street CJ adopted unreservedly a decision of Moffatt J in THORNLEY V. SYDNEY WATERFRONT WATCHMEN'S ASSOCIATION [1942] 16 WCR (NSW) 57.

Mr Baker drew attention to the fact that section 7 of the 1926 Act had undergone a number of amendments from time to time. One such amendment, he said, no doubt was designed to get around the judicial interpretation position exemplified in Bowden's case. Amongst those amendments was the insertion of paragraph (g) in section 7(1) of the 1926 Act, which provided that the worker's journey from his place of abode was deemed to have commenced, if his place of abode was a home unit, at the exit of the home unit whereby he departed on his journey.

It is relevant to add that that definition was short-lived, being subsequently removed from the legislation. Certainly as at the date of the injury in this case it was no longer the law; rather, as I have pointed out, by section 10(4) a journey from a place of abode commences at the boundary of the land on which the place of abode is situated.

Mr Baker further drew my attention to the following statement by Street CJ in BOWDEN'S case at 427-428:

"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 a 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 purposes 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."

There follows other relevant matter which I do not propose to reproduce.

In summary the respondent's submission is that, having regard to section 10 and to the definitions that the Legislature has set down therein and to various judicial interpretations of which Bowden's case and Thornley's case are but examples, I must assume that the Legislature intended the associated journey in section 12 to be the

same as is appropriate under the journey provisions in section 10 of the 1987 Act and section 7 of the 1926 Act.

I have given due consideration to these submissions, but I have come to a contrary conclusion. I do not believe that, in determining what is an associated journey, section 12 is restricted in the way in which the journeys under section 10 are. I believe that those journeys under section 10 are self-confined, as they deal in particular and in the main, if not exclusively, with journeys from a worker's place of abode to either his place of employment or other nominated places, such as a place of "pickup".

It is relevant to note that the right to compensation whilst on a journey, as far as my perusal of the 1987 Act indicates, occurs in only three places: firstly in section 10, secondly in section 12 which is here relevant and, in respect of a place of "pickup", in Schedule 1, clause 14. In that last respect the word "journey" is not used but rather the expression is "while travelling". Nevertheless, a journey to a place of pickup is specifically included in section 10(3)(f) as being one of the journeys to which section 10 applies.

It is notable that the journey in section 12 is not included in section 10, more particularly in the definition in subsection (3). I believe therefore that the determination of what is "an associated journey" in section 12 is to be determined without recourse to section 10.

I also believe that such cases as Bowden and Thornley are distinguishable. Those cases dealt solely with section 7 in the 1926 Act, which was the precursor to section 10 of the 1987 Act, and are restricted to journeys which are specifically those "between" place of abode and place of employment or camp or pickup. That is to say, they deal with a journey, which by legislative enactment, has a signified commencing and ending point. The associated journey in section 12 has not been made the subject of a defined commencing or ending point.

In those circumstances, I believe the question in this case is only whether the applicant was on a journey of the prescribed type within section 12, that is, one which is associated with his duties as a union representative.

In considering what is an associated journey, I have given thought to the matters commented upon by Street CJ in Bowden's case in the paragraph which I quoted, in particular, that part which suggests that a proper test, both for a journey between a place of abode and a

place of employment or other terminal place, should involve a consideration referred to by Street CJ when he said at 428:

"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."

In LEARMONTH V. H & A BAG CO [1944] 18 WCR (NSW) 131, there appears a further example of interpreting a journey as not having commenced until a worker has reached a place which is available to the public at large, or alternatively, a place of which the public have a right of access, such as the public street. In that case, as the headnote indicates, the applicant for compensation was employed by a respondent who occupied the second floor of a building. There were other tenants on the first floor, and the entrance hall was understandably on the ground floor.

The worker, in that case, was making her exit from the respondent's premises on the second floor down the first flight of internal stairs from the ground floor to the second floor when she fell on the stairs. She claimed compensation from the respondent in respect of her incapacity for work, and the Workers' Compensation Commission, Lamond J, found that the applicant in using the stairs was using a necessary means of egress which was not open to the public at large, and that when injured she was in the course of her employment.

That case was in 1944, probably before the journey provisions came into being. The gravamen of it is that she was still within the confines of the employer's workplace and therefore succeeded, it being held that she was in the course of her employment; that is to say, she was found not to have exited the place of employment and to be at large with the public.

It might be thought that in this particular case, by reverse analogy if that is an appropriate expression, Mr Hughes was still within a private place at the time he met with his injury, rather than having reached a place which was available to the public at large, and it was not until he did reach a place which was open to the public at large that he should be regarded as being on a journey.

I have considered that situation, in particular having regard to the reference by Mr Baker to me of Bowden's case and to his submission based upon it. However, it seems to me, if I am using the term correctly, as Sheller, JA said in his judgment in RICO PTY LTD V. ROAD TRANSPORT AUTHORITY (1992) 28 NSWLR 679 at 692, this may be apagogic reasoning. I do not believe, therefore, that it has application in this instance.

Further, there are two other matters which I have taken into consideration in rejecting the respondent's submissions on this particular point.

Section 10(5A) is as follows:

"Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act."

I consider that that signifies the limited application of section 10, including the geographical restrictions which subsection (4) imposes upon the rights of workers who are on the journeys defined in subsection (3). I believe that subsection (5A) acknowledges that section 10 is self-contained and applies only to those journey claims specified in it. It preserves the right to compensation for any personal injury which, apart from section 10, is an injury within the meaning of the Act. Clearly, one such right is that given by section 12.

Again, it is of relevance, in my view, that at no time since its introduction in 1980 in section 7(1)(h) of the 1926 Act has the Legislature seen fit to restrict an "associated journey" in the way in which it has done in respect of the other journeys in the Act. This is despite the fact that at one stage it at least showed its inclination to vary the definition of "journey" in section 7(1)(g) of the 1926 Act, providing that the place of abode terminated at the exit of a flat or home unit. Even then the Legislature did not deem it necessary to place any restriction upon "an associated journey" in section 12.

In my view, had the Legislature intended to restrict the commencing or ending point of a journey within section 12, as it has done in section 10(4), it would have made some similar provision, as indeed it did with journeys from a place of pickup to which I have earlier referred.

Obviously section 12 provides a right to compensation for trade union representatives who are injured on journeys other than those which have the place of the employment, in the sense of the respondent's workplace, as their starting or finishing point. It clearly would cover such a representative as the applicant were he to be injured, by way of example, travelling from the union offices to Parliament House so long as he was going there to transact business associated with his union duties. But it must also be the case that section 12 provides compensation to a worker such as Mr Hughes, who was travelling from his residence, to use a neutral term, to the union offices and that his journey was associated with his trade union duties.

The question of whether or not one is on a journey within the meaning of section 12 is probably best answered by the further question "Are you going somewhere?". Clearly, Mr Hughes was at the time of his injury. Indeed at the risk of oversimplifying the whole case, it seems to me that if Mr Hughes had been unjustifiably stopped at the very scene of his injury in the ground floor foyer of his block of units by a suspicious policeman who discovered he had $1,095 on his person and asked "What are you doing with that amount of money on you?", he would have replied "I am a union rep and these are union dues I collected last week, which I am taking to the union office". If that was the answer, as I believe it would have been, then it seems to me that the man on the Clapham omnibus would have concluded that Mr Hughes was probably carrying out his duties as a union representative, or alternatively, was on an associated journey.

I believe, therefore, that the applicant succeeds in this application.

[His Honour then considered the medical evidence and made an award and orders not calling for report.]

Award for the applicant

Solicitors for the applicant: Taylor & Scott

Solicitors for the respondent: Dunhill Madden Butler