J AND M LOJE BUILDING CONTRACTORS PTY LTD v LOJE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and MEAGHER JJA 6 September 1995, 6 September 1995 [1995] NSWCA 214 WORKERS COMPENSATION ACT APPEAL FROM REVIEW — WHETHER INJURIES OCCURRED IN THE COURSE OF EMPLOYMENT Clarke JA On Tuesday, 2 June 1987, the respondent to the appeal, whom I shall call the worker, sustained very serious injuries when he was struck by a bus travelling south in George Street, Sydney. The point at which he was struck was approximately opposite a portion of the GPO being about four feet west of the eastern kerb of George Street and about four metres south of the southern most extremity of the pedestrian crossing in that street. As a result of the injuries, which Dr Polgar described as "devastating and permanent", he had no recall of the circumstances of the accident, his last recollection being that he left a meeting with a Mr Jeffriess which had taken place in the GPO. The worker and his wife were the sole directors and shareholders of the appellant before the court today, whom I shall describe as the employer. The worker brought proceedings against the employer under s16 of the Workers Compensation Act 1926 (which I shall refer to as 'the Act') seeking weekly payments and compensation. He claimed that he was employed by the employer and at the time he received his injuries he was in the course of his employment. I pause here to observe that I find it very troubling that, in 1995, the worker's claim has not been resolved. I do not wish to direct any criticism at any person or entity for this unfortunate situation, but it seems to me that the sooner the case is resolved, one way or the other, the better. His application was heard by Commissioner Grayson who, on 5 September 1991, made an award in the worker's favour. In his reasons, the learned Commissioner considered two substantial areAs of disagreement. The first was whether the worker was entitled to compensation at all, the thrust of the argument being that he had not established that he was a worker in the employ of the employer. The second was whether, at the time he sustained his injuries, he had established, on the balance of probabilities, that he was in the course of his employment. On the first question, the learned Commissioner found for the worker. On the second it would seem, from the contents of the reasons, that the Commissioner found that the worker was injured during a break in "and therefore outside the course of employment'. However, he went on to apply the provisions of s7(1)(e) of the Act to hold that the worker was entitled to compensation. Let me here interpose the observation that during the course of discussion before the court today the view was expressed from the Bench that s7(1)(e) had nothing to do with this case if for no other reason than that it applies to a person 2 UNREPORTED JUDGMENTS who has left his place of employment, whereas the nature of the worker's employment required that he travel to various places throughout Sydney and its environs. The employer almost immediately sought a review of the award pursuant to s36 of the Compensation Court Act. The grounds on which it sought the review challenged both conclusions of the Commissioner, that is the finding of employment and the finding that s7(1)(e) of the Act applied. The review came before Judge Moroney who, on 25 May 1992, reviewed the decision of the Commissioner and ordered a rehearing of the application before a judge. In the course of expressing the reasons for his order, his Honour said that he did not need to say anything on the issue of employment. He based his decision on what he regarded as the Commissioner's erroneous reliance on s7(1)(e) of the Act. In the course of his reasons he said: [1] "I do not understand why the Commissioner sought to apply this particular provision. It seems to me that within the case there would have been opportunity for the applicant worker to establish that at no time did he get outside the course of his employment and that he could have brought himself within the canons of Humphrey Earl Ltd v Speechley (1950-1951) 84 CLR 126, and that that issue could have been considered and a determination made on that basis but at the heel of the hunt it seems that the Commissioner sailed right over the issue of whether or not the worker was in the course of his employment and attempted to apply the provisions of s7(1)(e) in circumstances where there was just no evidence to support such a course." The employer appealed from that part of his Honour's decision in which he ordered that the matter be reheard by a judge of the Compensation Court. It was contended that the judge erred in adopting that course and, in the notice of appeal, the order that was sought was an order that the award be entered in favour of the appellant. That, I would remind you, is the employer. Because of the rather curious way in which this matter came to this Court, there was a discussion at the outset of the appeal as to the orders which the Court could make if it was of the opinion that his Honour erroneously ordered a rehearing. During the course of that discussion it was suggested that, if the employer is correct in its submissions, there should be an award for it and the matter should not be remitted to the Compensation Court. In the alternative it was first suggested that, if the employer was not correct in its submission but either there was no evidence to support the original award or the original award was wrong, the matter should be sent back to the Compensation Court. After further discussion I think it was recognised that, in the particular circumstances of this case, it was open to the Court, if it allowed the appeal, either to return the proceedings to the Compensation Court or to make an appropriate award on the evidence adduced before the Commissioner. The circumstances to which I refer as "particular circumstances of this case" are that there was no question of credibility raised in the hearing before the Commissioner. The evidence was, it has been accepted on all sides, uncontentious. It follows that the Commissioner and Judge Moroney were, and this Court is, if it decides to adopt this course, required to determine what are the proper inferences to be drawn from that evidence. On the one hand, the worker submits that inferences should be drawn which support the original award. On the other hand, Mr O'Connor, senior counsel for the employer, who put his arguments URJ J AND MLOJE BUILDING CONTRACTORS PTY LTD v LOJE (Clarke JA) 3 persuasively, would have it that it was sheer speculation whether the worker was in the course of his employment at the time of his receiving his injury or outside the course of employment. I shall proceed then to refer in more detail to the facts, but before I do so I should make it clear that the issue concerning employment has not been pursued in this Court with the consequence that there is no reason to disturb the Commissioner's findings on that ground. The Court, I should emphasise, is not concerned to enquire into that issue. The fate of the appeal depends upon the proper conclusion as to the issue concerning the course of employment. Depending upon the resolution of that issue there is the question of the appropriate orders. The worker and his wife worked in the employer's business, which was that of a building contractor. In the course of his work, the worker supervised work at particular building sites in Sydney and its environs. He prepared and delivered quotations and invoices and, in small jobs, he undertook some of the physical labour of bricklaying, plastering and tiling. The employer contracted with a number of Commonwealth Government entities and, at the relevant time, a reasonable proportion of the worker's working hours was spent at the International Airport at Mascot. However, he had jobs in other locations and, as well, needed to see persons at yet other locations to discuss jobs or potential jobs. It would be wrong to describe him as having one place which could be called a place of employment from which he carried out all his employment. He was, in a real sense, peripatetic. At 6 am on 2 June he started his work for the day at the International Airport at Mascot. He left that site at about 9 am or 9.30 am and drove to the GPO in order to attend a meeting with Mr John Jeffriess, who was an Assistant Manager of the Buildings and Properties Branch of Australia Post. In the course of that meeting, which took place, he delivered invoices and quotes to Mr Jeffriess. Prior to attending that meeting he had made arrangements to park his car in the garage underneath the GPO building and in fact he did park his car at that location. Indeed, it was still there at the time he sustained his injury. Evidence given both by the worker and Mr Jeffriess established that the meeting took place somewhere around 10 to 10.30 am. The evidence also established that it was the intention of the worker to visit a building site in Pitt Street in the general location of Central Station at which work was being carried out by the employer on behalf of Australia Post. There was also evidence which established that the worker left the company of Mr Jeffriess and the next thing that is known about his movements is that, at about 10.30 am, he was struck in the situation to which I earlier referred by the bus travelling south. Evidence was given by the worker's wife to the effect that the only other item on his agenda in the city of Sydney on that day, apart from the visit to Mr Jeffriess, was the trip to the Pitt Street location. The employer contended before the learned Commissioner, Judge Moroney and this Court that the evidence was insufficient to enable a court to conclude that, when the worker received his injury, he was in the course of his employment. It was, according to Mr O'Connor, no more than a matter of speculation. The worker may, he suggested, have been on his way to the movies or to the races or in the course of carrying out some other private activity. The fact that he was found in George Street was inimical to a finding that he was either on his way to or returning from Pitt Street because the GPO itself fronted Pitt Street and the obvious course to his intended destination was via that street. 4 UNREPORTED JUDGMENTS Iam unable to agree with this submission. The evidence was that he came to the city of Sydney for his work and, and shortly prior to sustaining his injury and whilst in the course of his work, had a meeting with Mr Jeffriess. Upon leaving that meeting he was proceeding to Pitt Street. The manner in which he chose to go to Pitt Street or return from it was very much a question for himself, as were the reasons for adopting the chosen path, but what is clear is that he had come to the city and parked his car in the GPO in order to attend to his business before moving off and attending to his other duties. There is no evidence to support the view that he arrived at the Pitt Street site and, in those circumstances, it is probably the better view that he had not reached it. Notwithstanding, it seems to me that the overwhelming inference to be drawn from the proven evidence is that he was in the course of proceeding to that site. It may be that he wished to walk via George Street for a personal reason, but whether that is so or not does not seem to me to affect the conclusion that his journey to the Pitt Street site was for the purposes of his work and was part of the course of his employment. 10.30 am was, obviously enough, an early time in the working day of the worker and, as I have said, I think there is nothing to destroy the overwhelming inference that he was, at the time he received his injury, in the course of his employment. If he was returning from the Pitt Street site there could be a ready explanation for what is apparently inexplicable, and that is his presence in George Street. It is not, however, necessary for the Court, nor would it be proper for the Court, to speculate as to his precise reason for being in that street. It is sufficient to indicate that the probable inference to be drawn is that he was still in the course of his employment at the time he sustained his injury. This was the position when the matter was considered by Judge Moroney and, in my respectful opinion, his Honour, who indicated a tendency towards the same view, was in error, in the circumstances that all the evidence had been led in the case, in not proceeding to determine the issue. I would, accordingly, be disposed to allow the appeal and to set aside the order made by his Honour. In addition, in the circumstances to which I earlier adverted, I would strongly urge the course of this Court deciding the factual issue and making an order giving effect to that decision. In saying that, I am not unmindful of the enormous delay and the additional fact, which I mentioned, that all the uncontentious evidence was in and all that remained was for a court or tribunal to give a decision upon it. In my opinion, the order that should be made is that the award of the Commissioner made on 5 September 1991 be restored. I would, in the circumstances, order that, to the extent that there is any doubt about the situation, the employer pay the worker's costs of proceedings before the Commissioner, before Judge Moroney and of the appeal and that the employer should have a certificate under the Suitors Fund Act if it is otherwise qualified. Priestley JA I agree with what Clarke JA has said both about the issue concerning whether the worker was in the course of his employment and also about the most appropriate way of disposing of the overall proceedings in view of the circumstances of delay that have been mentioned by his Honour. Meagher JA I agree enthusiastically with Clarke JA. Priestley JA. The orders of the Court are as Clarke JA has proposed. URJ J AND M LOJE BUILDING CONTRACTORS PTY LTD v LOJE (Priestley JA) 5 Award of Commissioner made on 5 September 1995 restored. Employer to pay worker's cost of proceedings before the Commissioner, before Judge Moroney and of the appeal. Employer to have a certificate under the Suitor's Fund Act if it is otherwise qualified. COUNSEL: Appellant: CE O'>CONNOR QC AND P EVANS Respondent: R PETRIE SOLICITORS: Appellant: AO ELLISON AND CO Respondent: TAYLOR AND SCOTT