Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8

Reported Decision : 23 NSWCCR 128

Compensation Court of New South Wales

CITATION : Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8 PARTIES : Carl Musumeci GEM Engines Pty Ltd MATTER NUMBER(S) : 30150 of 2001 JUDGMENT OF: Quirk J at 1 Entitlements & Liability - Proceedings to Obtain Compensation :- Journey CATCHWORDS: Place of Employment Whether employment was a substantial contributing factor to injury s 9A s 10(1) s 10(2) LEGISLATION CITED: s 10(3) s 10(4) s 6 (1926 Act) s 7(c)(i) (1926 Act) s 7 (c)(ii) (1926 Act) Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165; Skelton v Department of Education (1974) 1 NSWLR 127; CASES CITED: Russell v Sydney City Council (1967) 41 WCR 68; Young v The Albury and Boarder Pastoral, Agricultural, Horticultural and Industrial Society & Anor (1932) WCRNSW 201; Williams v Ducon Condenser Ltd (1949) 23 NSWWCR 122 DATES OF HEARING: 17/10/01 DATE OF JUDGMENT: 02/07/2002

FOR APPLICANT: Mr S W Hickey instrucuted by Harpers appeared for the applicant LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M C Newton instructed by Vandervords appeared for the respondent

JUDGMENT: 1. Carl Musumeci claims compensation by way of weekly payments of compensation from 2 March 2000 to 20 March 2000 together with a lump sum pursuant to s 66 in respect of 10 per cent severe bodily disfigurement and s 60 expenses. His entitlement to compensation is said to arise out of an injury sustained in the car park of the respondent's premises on 2 March 2000, when the applicant was stabbed in the chest. The applicant's case is that at the time of the assault, he was "on a journey from his place of abode to his place of employment". 2. The issues for determination are: whether or not the applicant was in fact on a relevant journey at the time of the incident, and if not, whether or not his injury arose in or out of the course of his employment, and if so, whether or not his employment was a substantial contributing factor to his injury. 3. The facts are briefly, as follows: The applicant was born on 9 December 1982 and was 17 years of age at the date of injury. He commenced work with the respondent in March 2000 as a trainee metal grinder. His normal working hours were from 7am to 3pm. On 2 March 2000, he drove his motor vehicle to work and parked in the car park occupied by the respondent, which adjoined the respondent's factory. The car park and the factory buildings were enclosed by a tall, metal and wire mesh fence, photos of which were tendered in the applicant's case, Exhibit A. The applicant arrived in his motor vehicle at approximately 6.55am and parked his vehicle in the car park. He said that before he commenced work, his practice was to walk down the driveway from where he parked his car and "bundy-on" by placing a card in a machine. The distance from his car to the factory building was about 150 metres. After parking his car, David Steedman, a former employee of the respondent, approached his vehicle and a conversation took place between the applicant and Mr Steedman, part of which was conducted whilst he was in the vehicle and part after he had alighted from the vehicle. The applicant said he was standing at the driver's door with the door open during part of the conversation, when he realised he had left his wallet on the passenger seat, he leant into the vehicle to pick up the wallet then straightened up and before closing the door, Mr Steedman stabbed him in the chest. He was taken to Liverpool Hospital by ambulance where he remained for some few days and was off work until 20 March 2000. He was left with scarring on the abdomen and chest. 4. During cross-examination, the applicant agreed that when Mr Steedman approached, an argument ensued concerning a dispute over payments allegedly owed by the applicant to Mr Steedman in respect of a purchase of a mobile phone. The applicant agreed that Mr Steedman accused him of owing him money. The applicant disagreed with the proposition that he was, during the argument, pushing and shoving Mr Steedman. 5. During cross-examination, the applicant said that after Mr Steedman pulled the knife, he had not immediately realised that he had been stabbed and reacted in a "crazy way" and chased Mr Steedman, swearing at him and Mr Steedman "took off". 5. Paul Anthony Attard, an employee of the respondent, gave evidence in the respondent's case. He said he had parked in the car park on the morning of 2 March 2000, between 6.30 and 6.35am and was sitting in his car waiting to start work at 7am. He said the applicant parked his car about 8 to 10 metres away from him. He said he saw David Steedman approach the applicant's car. He said he could hear "them arguing" and saw "David lean into Carl's car". Mr Attard said that he was looking "on and off". He said he saw "Carl" get out of the car and then he said he saw pushing and punching by both men, but "didn't see any connect". He said he could not say "who started it". Mr Attard was unsure as to how long the altercation took place, although he said it was not a long time. He then saw the applicant hold his side and then chase Mr Steedman, when another altercation took place on the ground. 6. Mr Attard's evidence is in conflict with that of the applicant who denies any pushing, shoving or punching prior to the stabbing, and his version is, that the argument prior to the stabbing was verbal only, with Mr Steedman swearing at him. 7. There is an obvious conflict in the evidence of the applicant and that of Mr Attard as to whether any pushing or shoving took place. Both the applicant and Mr Attard presented in a straight-forward manner and I had no particular reason to disbelieve either of them. However, whether or not any pushing or shoving did take place, I am satisfied that the applicant was not the instigator or the aggressor in the altercation. It is clear on his evidence and that of Mr Attard, that David Steedman approached the applicant's vehicle, he having no reason to be at the respondent's premises at the time other than to confront the applicant, having left the employ of the respondent sometime before 2 March 2000. David Steedman had in his possession a knife, which he ultimately used to stab the applicant. 8. However, as is conceded freely by the applicant, the argument between him and David Steedman was in relation to monies allegedly owed by the applicant to Mr Steedman and was never anything other than a private dispute between them. That being so, leaving aside whether or not the principles ennunciated in a number of so-called "assault" cases, including the decision of Neilson J in Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165, to which I was referred by respondent's counsel, apply to the facts of this case, there was really no argument by applicant's counsel that, if it were found that the applicant was not on a journey between his place of abode and his place of employment at the time of the stabbing injury, then s 9A would operate to defeat his claim for compensation; in other words, applicant's counsel did not submit that the applicant's employment was a substantial contributing factor to his injury. However, s 9A has no application to injuries sustained whilst on a journey. Stojkovic was the only authority to which I was referred. 10. S 10 provides relevantly as follows:- (1)A personal injury received by a worker on any journey to which this section applies, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. (1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker. ..... (2) Subsection (1) does not apply if - (a) the injury was received during or after any interruption of, or deviation from, any such journey; and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation. ..... (3) The journeys to which this case applies are as follows: (a) the daily or other periodic journeys between the worker's place of abode and place of employment; (b) the daily or other periodic journeys between the worker's place of abode or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to attend; ..... (4) For the purpose of this section, a journey from a worker's place of abode commences at, and a journey to a worker's place of abode ends at, the boundary of the land upon which the place of abode is situated. 11. Therefore, whilst s 10(4) defines the commencement point and end point of a journey from and to a workers place of abode, no such definition exists in respect of place of employment. 9. Counsel have been unable to refer me to any decisions which are of assistance in interpreting the phrase"place of employment". There is no definition in the Workers Compensation Act 1987, as there was in the 1926 Act, wherein s 6 defined "place of employment" as meaning: The premises, works, plant or place for the time being occupied by or under the control or management of the employer by whom the worker concerned is employed, and on or at or in connection with which the worker was employed at the time of the injury. 10. There are a number of reported cases which dealt with "place of employment" and "place of abode" under the 1926 Act. In Skelton v Department of Education (1974) 1 NSWLR 127, it was held that in light of the definition in s 6 (of the 1926 Act), "place of employment" did not include a house at which the worker was permitted, but not obliged, to reside by the employer. It is clear from that decision that a less restrictive test might have been applied in the absence of the definition in the Act. 11. In Russell v Sydney County Council (1967) 41 WCR 68, Gibson J considered inter alia, the journey provisions of the 1926 Act and in particular, the starting point of a periodic journey between a technical school and the worker's place of abode. In that case, the worker's claim was unsuccessful in any event because it was held by Gibson J that the worker was not required by the terms of his employment to attend technical school and was not paid for the time he spent there and therefore, the worker's injury did not arise out of or in the course of employment. However, in considering the starting point of his journey from the technical college to his home, Gibson J held that as the injury occurred when the worker was leaving the college but before he had reached the public street, his periodic journey had not commenced, Gibson J stating that: ... it cannot be said that his journey from that place had commenced until such time as he had emerged onto the public street adjacent to the school. This indicates in the present context that a journey cannot commence until the worker has left the place of abode or place of employment. 12. In Young v The Albury and Boarder Pastoral, Agricultural, Horticultural and Industrial Society & Anor (1932) WCRNSW 201, the worker in that case was employed as a secretary by two respondents. On the day of his injury, he was engaged in work at one of the respondents' premises in Beehive Chambers, Dean Street, Albury, until about 7.40pm. He left the office to attend a meeting and when leaving the premises but before reaching Dean Street, he slipped on the marble stairway and received injury. It was held that when the injury occurred, the worker was on "his employer's premises" as he had not reached the public highway. In that case Perdriau J, said at 206:- In order to reach the public highway, which in this case was Dean-Street, the applicant had to proceed along the corridor and down the marble stairway, which turned out to be a special risk in the employment. The corridor and stairs were also used by other tenants in that portion of the building as well as by their employees and people having business there, but the Commission is not satisfied that once applicant had closed the office door and commenced to walk along the corridor he was then subjected to the risks common to the whole of the community in the use of public highways. This is another indication of the width of the concept of "place of employment" even under a restrictive definition. 16. In Williams v Ducon Condenser Ltd (1949) 23 NSWWCR 122, the worker was injured when she was riding a bicycle home from work. She lost control of her bicycle when it passed over an uneven surface outside a gate of her home and received injuries by falling on the driveway inside the gate. Rainbow J at 124, said:- There is no doubt the applicant received injuries, the question is whether she received them on her daily journey between two fixed points. The preposition "on" conveys the notion of time, namely of an occurrence during the period occupied by a journey. In that case, the applicant lost because she did not receive injury until she hit the ground inside her "place of abode" , another indication of the width of the concepts "place of abode" and "place of employmen"t under the former Act. 17. S 7(1)(c)(i) and (ii) of the 1926 Act is in identical terms with s 10 (3)(a) and (b) of the 1987 Act. Rainbow J, referring to the 1926 Act, said as follows:- The preposition "between" in paragraph (c) of s 7(1) connotes motion from one place to another and the places are specified as being her place of employment and her place of abode. The Act indicates that there is a beginning and an end of a journey, and the finishing point in this case is, as paragraph (i) says, the worker's place of abode. He said later, dealing with the ambit of a journey at 125:- Again, if some known point did not define the commencement or end of the journey, it would be difficult to know whether a defence of default would apply, or whether a defence of serious and wilful misconduct in the course of employment was to be considered.