URBAN TRANSIT AUTHORITY OF NSW v TABAJA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 22 October 1990, 22 October 1990 [1990] NSWCA 178 APPEAL — NO EVIDENCE — WORKERS COMPENSATION — TRANSPORT AUTHORITIES ACT 1980 SCHEDULE 5 CL2(1) — CLASSIFICATION OF EMPLOYEE — DUTIES OF EMPLOYEE Meagher JA The respondent, Mr Tabaja, was working for the appellant, the UrbanTransit Authority of New South Wales, when on 5 December, 1983 he suffered an injury At the time of the injury he was a leading hand cleaner employed by the respondent. The point which the appellant raises and it is the only point, is that there was no evidence that a leading hand cleaner had duties of a physical nature within his classification and therefore there was no evidence that he was required to do such duties. Mr Sternberg has drawn our attention to the only evidence which is said to bear directly on this point, which is the evidence of Mr O'Neill who was Depot Manager for UTA employed at the Port Botany Bus Depot. During that evidence Mr O'Neill was asked: "Was the respondent a bus leading hand cleaner?" The answer was that he was. When he is asked to tell us what are the duties of bus leading hand cleaner he said, "To supervise and arrange the work for the cleaners that are working for him." He was then asked: "Q. If a bus leading hand cleaner was to, for instance, inspect a bus and find that the bus was not satisfactorily cleaned, what would he do or what should he do? A. In my opinion he should get the cleaner that had done the unsatisfactory job and tell him to do the job correctly." He was further asked: "Q. Was he required at all to do the job himself to rectify the defective work? A. No, it is not necessary for him to do the job himself." That evidence is the only evidence as to classification. It is somewhat surprising, one would have thought that this evidence would be admitted. If evidence were to be cogent as to what was required of a classification, one would expect to be referred to some document, some bylaw or regulation, which set out clearly enough what work was required of a particular classification and what work was not. There is no evidence of that kind. An alternative way one might have thought that the duties involved in any particular classification could have been proved, was evidence as to what instructions were given to the respondent when he commenced whatever job he did commence. Again, there was no evidence of any such instructions. In these circumstances what his Honour did was ask what work in fact did the respondent do in the job of leading hand cleaner. The evidence of Mr O'Neill himself is to like effect although Mr O'Neill was the person chosen by the appellant to give evidence that it was not part of his job classification. He agreed that it was a good way to fulfil the respondent's 2 UNREPORTED JUDGMENTS occupation by doing it himself in normal circumstances. He also said that he was aware that on occasions this is what the respondent did. A further employee called by the appellant, Mr Nguyen, gave evidence to a similar effect. Therefore, there being no instrument to the contrary and no evidence of any instructions to the contrary his Honour worked out what was involved in the classification of the employee by taking as his starting point what work that employee in fact did without any dissent from the employer and treated the work which he in fact did as work falling within the classification. I see nothing wrong in that approach. His Honour, assisted by this approach, took the view that doing physical work was part of the classification in question. Not only do I see nothing wrong in his Honour forming that conclusion, what is perhaps more important is, it deals with a pure question of a fact from which no appeal goes to this Court. His Honour having, in a perfectly legitimate manner therefore, concluded that doing physical work was part of the worker's classification, came to the conclusion that when the worker was unable to do physical work he had therefore proved that he was incapacitated by an injury arising out of the course of his employment which rendered him unable to perform the duties of that classification within the meaning of Schedule 5 CL2(1) of the Transport Authorities Act (1380). That seems to me to dispose of the present case. The appellant did put to us that there was something contrary to that conclusion in the decision in State Rail Authority of NSW v Chami (1986) 6 NSWLR at 524 and in particular something contrary to a view expressed by Mahoney JA in that case. I do not see that that is so. What his Honour Mahoney JA said in the course of a very interesting judgment in that case was that in some cases the classifications you may have two distinct duties to perform, one of which the employee can perform and one of which he cannot. That is not a matter which arises in the present case. In the present case his Honour found there was but one duty to perform within the classification, namely, to give directions and occasionally do physical work. Once the employee is incapacitated from one aspect of that single classification, the result flows that he is unable to perform his duties. For these reasons my view is the appeal should be dismissed with costs. Mahoney JA I agree. As Meagher JA has said the question is whether the worker has shown that he is unable to perform the duties of his classification as a leading hand cleaner. Within the terms of Schedule 5 CL2(1) the question to be determined is, what were the duties of the classification? There was no evidence that they had been reduced to writing, nor was there any suggestion that when the worker was appointed to the particular position he was told what were the duties that he had to perform. It may be speculated, if it is permissible to speculate, that what happened was he was told "You are now a leading hand cleaner" and by inference, "You must therefore do what a leading hand cleaner is to do." In the absence of a specification of the duties, what a leading hand cleaner is to do can, I think, be inferred from what, at the relevant time, leading hand cleaners actually did. I do not wish to state exhaustively what inferences may be drawn but the inference that is to be drawn as to what a leading hand cleaner was to do would be affected by what at the relevant time a leading hand cleaner did. In this regard the worker himself gave evidence which I think would have been sufficient to support his Honour's findings. The applicant said: URJ URBAN TRANSIT AUTHORITY OF NSW v TABAJA (Clarke JA) 3 "Q. What did your duties as a leading cleaner generally involve? A. I was supposed to give work to the cleaners and also I had to tell everyone what to do. Talso have to give them all the detergents and the soaps they used and also I give everyone a job to do. Q. Did you do any physical work yourself as a leading hand cleaner? A. Well, I had to check everyone and if I find that someone is not doing his duty, I used to show him how to do it. I used to do it myself to teach him how to do it." Subsequently he gave the following evidence: "Q. On 5 December, 1983 were you at work when something happened to you? A. I started early in the morning and I gave out the jobs to the workers. At the time there was a shortage of labourers, so I spoke to one of the cleaners. He told me he wanted detergent and I said, 'All right, come, I will help you with it.' We had to put a drum on a trolley and this is a usual thing that we do all the time." From that alone it would, in my opinion, have been possible for the Judge to infer that that was what leading hand cleaners did at the time and from that to infer what their duties were. Meagher JA has referred to the evidence given by Mr O'Neill and also by Mr Nguyen. I agree with what his Honour said in that regard. I agree with the orders which he has proposed. Clarke JA In my opinion the appeal should be dismissed for the reasons given both by Mahoney JA and Meagher JA. The order of the Court, therefore, is the appeal is dismissed with costs. Counsel for the Appellant: PR STEINBERG Counsel for the Respondent: C. O; CONNOR/P. KAVANAGH Solicitors for the Appellant: ASTRIDGE and MURRAY Solicitors for the Respondent: TAYLOR and SCOTT