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. His Honour dismissed the application, as seems to me to be plain from his reasons, because of one main consideration. He said: 2 UNREPORTED JUDGMENTS "Tf one could spell out some interest of the employer, even though what the applicant did he did voluntarily and did with the best public motives, one would not have much hesitation in saying what he did arose out of or in the course of his employment." His Honour went on to indicate that on his view it could not be said that the employer had any interest or benefit in the preservation of the integrity of Trieste Smash Repairs premises. There are other parts of his reasons in which he expresses the same idea. It seems to me that it was an error of law for the judge to say that there was no interest of the employer in the premises. What the employer's interest was could be stated in several ways - the primary facts are that vehicles in the care of the employer were from time to time left at the premises of Trieste Smash Repairs and the employer, in the person of Mr Manning, had access to the premises. From this it is certainly open to infer, although it may not be necessary to do so, that he was licensed to go upon the premises in connection with the leaving of vehicles there. It was certainly also in the employer's interests that the premises of Trieste Smash Repairs should be secure so that unauthorised persons could not go upon them and interfere with vehicles left there in the course of the employer's business or pilfer from them or, as can readily be imagined, help themselves to spare parts from wrecked vehicles. It does not seem to me to be necessary for the purposes of this appeal to embark upon a precise analysis of exactly what the interest of the employer was in the premises. What I have said already, in my opinion, is sufficient to show that there was evidence before the Compensation Court upon which it was open to find that it was in the employer's interest that Trieste Smash Repairs premises should be secure, and that incidentally to that interest, it was lawful for the employer to do whatever was reasonably necessary to assist in the keeping of those premises secure. After having said what he did about the employer having no interest of the kind I have dealt with in the premises Burke J went on to say that, weighing the facts on the probabilities, what the applicant did in going on to the roof was not in the course of his employment. It is arguable, and was argued, that in saying that his Honour understood himself simply to be arriving at a factual conclusion on the matters before him and then coming to the only legal result of his factual assessment. I do not think that this is the better way of understanding his Honour's reasons. It seems to me that his Honour only arrived at what were described as "factual conclusions" on the basis of his earlier legal statement that the employer had no interest in the premises - indeed his Honour said that had he thought the employer had any interest in the premises: "One would not have much hesitation in saying what he did arose out of or in the course of his employment." It seems to me that the conclusion reached by his Honour is affected by what I have described as an error of law. What would follow from such an opinion was also the subject of argument. For the applicant it was said that this court should come to the conclusion that the applicant was acting in the course of his employment at the time of his injury. It was said that no other conclusion was reasonably open on the facts. For the respondents it was said that if the court did reach the opinion that I have indicated, then the matter would have to go back to the Compensation Court for further hearing in the light of this court's opinion. That seems to me to be the submission which this court should accept. It seems probable that Burke J, had URJ KAZZI| v MANNINGS TOWING PTY LIMITED (McHugh JA) 3 he taken the view which I have taken of the legal situation concerning the employer's interest in the security of Trieste Smash Repairs premises, would have gone on to reach the conclusion in the applicant's favour which he had indicated. However, the reaching of that conclusion seems to me to be a factual matter in the sense in which factual matters are solely within the jurisdiction of the Compensation Court. It is for the Compensation Court to reach that conclusion upon a correct application of the legal principles if, on its view of the facts in the light of those principles, it thinks it should do so. ORDER In my opinion the appropriate order here is that the judgment of the Compensation Court should be set aside and the matter remitted to that court to be decided in accordance with this court's opinion. The respondents must bear the applicant's costs of the appeal. Hope JA I agree. McHugh JA I also agree. HOPE JA: The appeal is allowed and orders made as proposed by Priestley JA. The respondent company should, if qualified, have a certificate under the Suitors' Fund in respect of the costs of the appeal. COUNSEL: APPELLANT- B GROSS QC / MS P KAVANAGH RESPONDENT- P WEBB QC / B ODLING (for both respondents) SOLICITORS: APPELLANT- McLELLANDS RESPONDENT- EJ WALSH (lst respondent) JA KERNICK (2nd respondent)