KAZZI v MANNINGS TOWING PTY LTD [1989] NSWCA 117

KAZZI v MANNINGS TOWING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLY and CLARKE JJA 26 May 1989, 1 August 1989

[1989] NSWCA 117

Appeal from Compensation Court — Worker in tow truck business brings car to repair yard at night — Climbs over locked gate and onto roof for purpose held not to be purpose of his employment — Injured in fall through roof — Judge held injury not arising out of or in course of employment — Held: Judge did not err in law in so finding or in the principles applied. Meaning of "arising out of" and of "in the course of" employment — What may be "incidental to" employment — What constitutes an interruption to the course of employment. ORDERS (By majority) Appeal dismissed with costs.

Mahoney JA Mr Kazzi was a tow-truck driver employed by Mannings Towing Pty Ltd("Mannings"). In this proceeding Mr Kazzi has claimed compensation from Mannings under the Workers Compensation Act 1926 in respect of an injury suffered by him during the period of his employment.

During the evening of 22 September 1984, Mr Kazzi towed a vehicle to the premises of Trieste Smash Repairs ("Trieste"). He was to leave the vehicle in the yard of those premises. The gate to the premises was locked and he did not have the key. Mr Manning had the key and was coming to open the gate for him.

It was said that there was an intruder on the Trieste premises. Mr Kazzi scaled the nine foot fence to the premises and climbed onto the roof. While he was there, he fell through the roof and suffered the injury for which, in this proceeding, he claims compensation.

Before the Compensation Court there was widespread dispute as to what had happened. In February 1987, when the proceeding was originally before the Compensation Court, the learned trial judge made an award against Mr Kazzi. That award was set aside by this Court and the proceeding returned to the Compensation Court for reconsideration. On that reconsideration, the learned judge re-examined the facts. He made again, in detailed form, the findings of fact which he saw to be necessary and he set forth at length the reasons why he made them. Upon the basis of those findings, he again found against Mr Kazzi.