Cotswold Australia Pty Limited v Pickwell [2001] NSWCC 64

Reported Decision : (2001) 21 NSWCCR 711

Compensation Court of New South Wales

CITATION : Cotswold Australia Pty Limited v Pickwell [2001] NSWCC 64 Cotswold Australia Pty Limited PARTIES : v Edward Pickwell MATTER NUMBER(S) : 47868/1 of 1998 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23/03/00, 24/03/00 DATE OF JUDGMENT: 05/18/2001

FOR APPLICANT: Mr L King SC with Mr C S Robertson instructed by Vardanega Roberts appeared for the claimant LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Joseph SC with Mr R Goodridge instructed by Firths appeared for the opponent.

JUDGMENT: 1. This is an appeal from a decision of Hogg C made on 19 November 1999. The appeal was heard on 23 and 24 March 2000. I have delayed making my decision because of developments in the case law. The first case was the decision in Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 697 (9 May 2000), the second was Athval Management Pty Ltd v Doherty (2000) 20 NSWCCR 687 (6 October 2000) and the third was Vetter v Lake Macquarie City Council [2001] HCA 12 (8 March 2001), in which case leave to appeal had been granted by the High Court before the hearing of this appeal. Background 2. On Friday 21 March 1997, the worker, the Opponent in the appeal, was involved in a motor cycle accident. He suffered a comminuted compression fracture of the L1 vertebra with spinal cord injury. He was essentially rendered paraplegic. At that time the worker was 25 years old. He had been employed for approximately 10 years by the employer, the Claimant in the appeal, as a fitter, machinist and welder. 3. On Friday 21 March 1997, the worker had a "flexi day". He had previously requested the day off from the employer's production manager, Mr Eamon Tierney. On the evening of Thursday 20 March 1997, the worker had purchased a new motor cycle, second hand, at Helensburgh and it was delivered to his residence. The worker then resided at 7A King Street, Campbelltown. Those premises are not described in any detail in any part of the evidence. The premises are referred to as a "house" in numerous places. The inference to be drawn is that it was a free standing dwelling house. The worker shared those premises with a male friend. Other than in material to which I shall come, the only other evidence which might provide some description of the worker's premises is this: Q. Did you ride it [the motor cycle] that night [20 March 1997]? A. Up and down the street, yes. Q. That is up and down King Street? A. King Street, yes. Q. The neighbours might have objected if you were giving it too big a trial. Is that right? A. Yes - there it wouldn't matter. It's pretty busy central business district there. No-one would even hear it, I didn't think." 4. About 1 pm on 21 March, the worker received a telephone call from Mr Tierney. He advised the worker that there might be an "onsite job" on Saturday 22 March, that is he was advised that he might be required to work on the following day. Mr Tierney told the worker that he "would get back" to the worker about the possibility of such work, that is he would telephone again. The worker then decided that he "wasn't go to hang around all day", awaiting Mr Tierney's further call and that he would go for a ride on his new motor cycle. The worker had a mobile telephone and it is clear that Mr Tierney knew the number. Indeed, he attested to trying to contact the worker, unsuccessfully, on his mobile telephone later that day. 5. The worker then drove his motor cycle south for about 15 kms to Wedderburn, to ride on fire trails. It is to be noted that the employer's premises are a much shorter distance north of the worker's house. Having completed his trial bike riding the worker "headed back towards home". He "pulled up in the driveway", then realised he hadn't heard from Mr Tierney. Rather than telephoning Mr Tierney, the worker decided to drive to his employer's premises. 6. The route the worker took from his "home" to the employer's premises was along a canal containing Bow Bowing Creek towards the employer's premises which, according to exhibit A, appear to be at Essex Street, Minto. Whilst travelling along the canal, the worker was thrown from his motor cycle, and sustained his serious injury. 7. At the hearing before Hogg C, the worker alleged that at the time of his injury he was on a periodic journey from his place of abode to his place of employment and that he was therefore entitled to worker's compensation pursuant to the Workers Compensation Act 1987, s 10. The worker's case was that after completing his trip to Wedderburn, he had returned "home" and that there was a new journey from his place of abode to his place of employment. He also alleged that he was not only going to his employer's premises to find out if work were required of him on the following day, but also to load up the truck with any necessary equipment for the "on site job" if that were required. The worker also alleged, in the alternative, that the injury he sustained arose out of or in the course of his employment. 8. Hogg C found that the worker was injured on a periodic journey between his place of abode and his place of employment and awarded him weekly payments of compensation from 21 March 1997 to date and continuing, a lump sum compensation of $121,000 pursuant to s 66 and $45,000 under s 67. The Commissioner expressed tentative views that the injury also arose in the course of the employment and the employment was a substantial contributing factor but did not find it necessary to finally determine such issues. The Appeal 9. The grounds in the employer's notice of appeal are: "1. The Commissioner erred in holding that the journey was a daily or periodic journey. 2. The Commissioner erred in holding that the journey had commenced from the worker's place of abode." Those grounds do not disclose errors of law. This appeal is limited to errors of law: Compensation Court Act 1984 s 34A. By subsection (4) I am not permitted to re hear the matter or conduct a new hearing. The grounds argued by Mr King SC for the employer were: a) that there was no evidence upon which the Commissioner could find that the worker had crossed over the boundary of his property on his return fromWedderburn, such that it was not open to the Commissioner to find that a periodic journey commenced from his place of abode when he left to journey to his place of employment; and b) that there was no evidence on which the Commissioner could find that the journey towards the employer's premises was a "periodic journey" as required by the Workers Compensation Act 1987 ("the Act").