KAZZI v MANNINGS TOWING PTY LIMITED [1988] NSWCA 78

KAZZI v MANNINGS TOWING PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, PRIESTLEY and MCHUGH JJA 2 February 1988 [1988] NSWCA 78

WORKERS COMPENSATION — appeal — whether point of law involved — judge's conclusion on facts clearly arrived at by reference to wrong view of law — error on point of law.

EMPLOYER AND EMPLOYEE — repair yard owned by smash repairer — whether injury to employee of tow truck company, the manager of which had key to repair yard, received in going on to repair yard premises in search of intruder before manager arrived, arose out of his employment.

ORDERS

1. Judgment of the Compensation Court set aside and the matter remitted to that court to be decided in accordance with this court's opinion.

2. The respondents to bear the applicant's costs of the appeal; the respondent company, if qualified, to have a certificate under the Suitor's Fund in respect of the costs of the appeal.

Priestley JA This is an appeal from Judge Burke of the Compensation Court who dismissed an application by a worker for compensation under s7 of the Worker's Compensation Act 1926.

The facts, either as found by his Honour or which were common ground or were necessarily implicit in what his Honour said in his reasons and which are relevant to the appeal, are these. On 22 September 1984 the applicant was employed by Mannings Towing Pty Limited as a tow truck driver. The person who had the conduct of the operations of the employer company was Mr Manning. The applicant, in company with a fellow employee who was the driver of another tow truck, became aware of the report of an intruder at the premises of a firm or company which was called either Trieste or Rozelle Smash Repairs. (I will call it Trieste Smash Repairs.) The premises of this business were premises to which the employer's business would take smashed vehicles from time to time. Mr Manning had a key to the premises. The applicant had in his charge a vehicle which was to be towed and left at the premises of Trieste Smash Repairs. The applicant and the other employed driver, Mr Baker, arrived at the premises of Trieste Smash Repairs knowing of the report of the intruder upon the premises and knowing also, on the facts as found by his Honour Judge Burke, that Mr Manning was on the way to the premises with keys which would allow entry to them. Before Mr Manning arrived the applicant got over the fence surrounding the premises and on to the roof of the premises with a view to locating the intruder, if there was one, on the premises. In the course of, as his Honour said, clambering over the roof, he fell through it. The compensation which he sought from the Compensation Court was for the injury he then received.