Reported Decision : (2001) 22 NSWCCR 564 Compensation Court of New South Wales CITATION : Thomas v Transport Workers Union of Australia [2001] NSWCC 155 revised - 13/02/2002 PARTIES : Trevor Leonard Thomas Transport Workers Union of Australia MATTER NUMBER(S) : 54577 of 2000 JUDGMENT OF: Wright C at 1 CATCHWORDS: Miscellaneous Matters :- Accredited representative of a trade union - limited application LEGISLATION CITED: S 12 Workers Compensation Act 1987 CASES CITED: Hughes v Civil and Civic Pty Ltd (1995) 11 NSWCCR 27-Distinguished DATES OF HEARING: 09/11/01 EX TEMPORE JUDGMENT DATE : 11/09/2001 FOR APPLICANT: Mr M Bleasel of counsel instructed by Messrs Bell and Partners appeared on behalf of the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Snell of counsel instructed by Messrs Grahame Goldberg Partners appeared on behalf of the respondent. JUDGMENT: Application and Issues 1. The threshold issue in this case is whether, if the worker suffered a back injury on 27 May 1994, it was an injury that was compensable under the Workers Compensation Act 1987. The applicant alleged two injuries, the second being a work injury to the low back on 4 July 1994. The threshold issue is also important because there is conflicting evidence about whether the subsequent injury contributed to the worker's overall condition. 2. The worker claims lump sum payments for permanent back impairment, namely for 25% permanent back impairment, for 10% left leg loss and a payment for pain and suffering. The s 66 claims were based on assessments by Dr Richard Deveridge in February 2000, but he discounted these amounts to allow for some pre-existing disability. Factual matters 3. In May 1994 the worker (date of birth 19 April 1955) was a trade union official for the Transport Workers Union. He asserted that the Secretary of the Union told him, when he was first appointed, that he could be expected to be on call around the clock. The flexible nature of the duties, which required Mr Thomas to service the membership of the union, attend industrial meetings and assist with the settling of industrial disputes, was demonstrated with his general evidence that he could be called out at all hours and that specifically, on 27 May 1994, he was called out at 2 am from home to attend a 3 am meeting. After this meeting, he had continued work until 5 pm the following afternoon, attending other work and meetings at various industrial sites around Sydney during the ensuing 14 hours. Apparently he did not attend the union office that day. After he had ended his extended day's work, he had driven to his home. It had been his intention to commence work the next day at 6 am. 4. Inside the curtilage of his private property at Claremont Meadows, he alighted from his vehicle and was in the act of twisting to close the car door when there was a dramatic episode in that he suffered severe back pain and left leg pain and dropped to the ground. He had attended his local doctor several days later for treatment. It is his assertion that he was covered for injury as he was still on a "journey" under s 12 of the Workers Compensation Act 1987. He did not tell his doctor that the 1st incident had occurred in early June 1994. 5. On the second occasion, on 4 July 1994, he had also experienced back pain after alighting from his vehicle at Parramatta in the course of attending the Parramatta office of the TWU. 6. The medical evidence supports a view that, in the 1st incident, the worker probably suffered a back injury in the act of twisting his torso. 7. The worker agreed that his starting times for work varied with the demands of the job. He denied the suggestion that the 2 am call out was not a normal occurrence. He had been called out in the early hours of the morning about 4 times monthly. His most frequent start began with his leaving home at 6 am. He could sometimes finish work at 10 pm or 11 pm. A typical day without such special demands might see him leave for work at 6 am and finish at any time between 3 pm and 7 pm. He he had not worked 24 hours in any one day. He regarded himself as being on call 7 days a week. 8. Mr Thomas had made workers compensation claims in respect of both incidents, and had received his pay for time off work after both incidents. In the 2nd claim form, the box that had been ticked for "no previous claim" had been completed in error. He had "always" had back and leg pain after the 1st incident. He denied that his back and leg were normal immediately before the 2nd incident. Claim for Permanent Loss Compensation 9. Mr Thomas, prior to May 1994, was a fairly active 39 year old. Apart from his long hours at work, he played soccer every weekend and enjoyed snow skiing annually. He carried out house maintenance and some gardening and enjoyed repairing and maintaining a veteran car. 10. Prior to 27 May 1994, he had no problems with his back or legs. On that day he suffered sudden back pain, laid on the ground for a few minutes, then rose and entered his house. He had pain all night and laid on the floor. He took about 10 days off work and received medical treatment, including physiotherapy and medication. On his return to work, he was restricted to office work. The back and leg pain fluctuated in intensity for the next 5 weeks. 11. On 4 August 1999 the worker visited the Parramatta branch of the TWU and, in the act of attempting to close his car door, he again had a sudden severe pain in the back. He went off work until 19 August 1994 and returned to lighter duties which he continued until 24 November 1994 when he resigned. His reason for resigning was the reluctance of his employer to release him from office tasks to his full duties. 12. Since his resignation from the respondent's employ, the worker has been employed with First Fleet Transport, firstly as a driver of a prime mover until April 1995 and, since that time, as a transport manager. In the driving job he was able to work for 8 to 10 hours daily, doing local deliveries without any loading requirements. Waiting time was a feature of this job, with about 70% of his work time involving actual driving work. The transport manager's job requires no driving or manual work. 13. Between 1994 and the present time he has had continuing back problems and pain and numbness in the left leg. He thinks that the pain levels are now a little bit worse. He has sought medical advice and has decided not to have surgery for his condition. He now has problems with putting on his socks, bending, and prolonged sitting, and has a little bit of difficulty with lifting things. He is able to drive a 4 wheel drive motor vehicle without difficulty, although he attributes this ability to not needing to bend to get into a smaller vehicle. 14. Mr Thomas agreed that he suffered an onset of severe back and leg pain in the May 1994 incident and had never recovered 100% from that incident. He had not returned to the active playing of soccer, although he commenced playing in a charity match in August 1997 only to have his leg broken by a falling player in the first few minutes. He had been involved in the training of premier league soccer teams until 2 or 3 years ago. The involvement had been "within (his) limitations". He acknowledged that he had been compensated for an 11.5% loss of use of the injured right leg as a result of the unrelated accident and that this disability also had an effect on his general mobility and his ability to ski. He disputed the assertion that he had symptoms of arthritis in both knees. He had never had any problems with the left knee. 15. A specialist, Dr Compton, had been seen after the 2nd incident, on about 4 or 5 occasions up until late September 1994. Medication had assisted him and he had returned to work. He may have told CRS that he was pain-free with use of anti-inflammatory medication. He probably told that organisation that he had no difficulties with standing, walking, sitting or driving the 45 minutes to work. He agreed that he had been managing without pain, under the supervision of CRS, but he was not doing his full duties. 16. The medical evidence for the worker includes opinon reports from Drs Ryan, Deveridge, Wallace, Fearnside, Barich, McLeod and Marsden. Several of these reports were commissioned by the respondent. 17. A CT scan from Castlereagh Radiology on 6 July 1994 showed that the worker had a moderate-sized left postero-lateral disc protrusion at the L5/S1 level causing displacement of the left S1 nerve root, a fairly unequivocal finding. Dr Ryan prescribed medication and Mr Peter Kent provided physiotherapy services. A lumbar myelogram and CT scan was done by Dr Ho on 19 September 1994. The GP notes of treatment and complaint are not clear about whether there was leg pain after the 1st incident, but there is a clear note of left sciatica down to the knee after the 2nd incident. 18. Dr Jeffrey Compton, neurological surgeon, saw the worker shortly after the 2nd incident. He described the worker as having suffered from a small left-sided disc prolapse with some spondyltitic change "in relation to that". His history also does not clearly record sciatic pain after the 1st incident. In September 1994 Dr Compton described the protrusion as small and as being associated with some spondylitic change. He held out hope that surgery could resolve the symptoms. The worker chose the conservative path. There is no report or assessment before me from Dr Compton after 1994. 19. Dr Richard Deveridge in February 2000 made his assessment of permanent impairment and loss. He recorded complaints of fairly constant pain in the back and buttock region since 1994, with spasmodic shooting pain down the left leg which prevented the worker from sitting or standing for long periods or from walking for more than 20 minutes. He thought that the worker had a reduced lumbar lordosis and a reduced straight leg raising test on the left. He opined that the worker had ruptured a degenerative L/S disc as a result of the 2 injuries, with a one-tenth contribution from pre-existing disability. He thought that 75% of the disability related to the 1st injury and 25% to the 2nd injury. He did not fully explain how the worker with his restrictions and disability could have worked as a driver for 2 years. 20. Dr Ray Wallace in June 2001 appears to have overlooked the driving job after 1994. Dr Wallace agreed that there had been a disc lesion, and accepted that the worker had some restrictions on back movement and some paraesthesia and numbness in the left leg. He placed restrictions on the worker's physical capabilities in the future. He assessed 18% back impairment and 15% left leg loss and made no provision for pre-existing disability as the worker had "described no pre-existing injuries". He related the impairments indivisibly to both injuries. 21. Professor Michael Fearnside in June 2001 described the earlier radiology as showing a moderately large prolapsed disc with a persisting but smaller profile in 1999. He thought that the 2 incidents had caused the pathology and resulted in radiculopathy. He accepted the worker's complaints and anticipated that the worker would experience back and left leg pain into the future and he might face surgery if the condition worsened. He assessed 20% back impairment and 10% loss of use of the left leg. He did not consider that any deductible proportion applied. 22. Professor J G McLeod in April 2001 accepted that the worker had low back pain and left sciatica, although his assessments of 10% back impairment and 5% leg loss are difficult to appreciate, given the extent of the physical limitations and the lack of any deductability under s 68A. 23. Professor F Marsden in April 2001 thought that the 1st incident was the focal cause of his condition and accepted that there were continuing back and left leg symptoms. He estimated 15% back impairment and 5% leg loss of use. 24. In February 1999 a CT scan showed a bulge of the L5/S1 disc displacing the S1 nerve root, which Dr Johnson suggested was similar in appearance to the 1994 scan. 25. The use of most of the respondent's medical reports by the worker left the respondent without much medical evidence to tender. Dr Simon Coffey reported in 2000 upon an improvement in the worker's right knee problem, which was diagnosed as a mono-articular inflammatory arthritis of uncertain aetiology. There was also a clearance from Dr Compton on 26 September 1994 that the worker was "fit to return to work". Physiotherapy notes from the King Street practice showed that the worker had had treatments for his back complaints in 1994 and 1997, with Mr Compton concluding in August 1994 that the worker had greatly improved and should return to light duties for two weeks and then full duties after a further two weeks. However Mr Compton reported the next month that the worker was "no better" after physiotherapy. Threshold question - whether the associated journey provision is applicable in May 1994 26. One question for determination is whether the 1st injury comes within the ambit of the Workers Compensation Act. It was argued that, had the provisions of s 10 of the Act been applicable to this incident, there would be no compensation for any sequelae of that injury between the place of employment and the place of abode because the statute stipulates the end of the journey to be at the boundary of the worker's property. The worker's counsel argues that the worker has sustained an injury on an associated injury, as countenanced in s 12 of the Act, and that this is compensable. 27. The provisions referred to are - "Journey claims (cf former s 7 (1) (b)"(d), (f), (g)) 10 (1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly… (3) The journeys to which this section 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, (c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation, (d) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3), (e) a journey between any camp or place: (i) where the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to reside temporarily, or (ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker's employment, and the worker's place of abode when not so residing, (f) a journey between the worker's place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act, (g) a journey between the worker's place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money: (i) due to the worker under the terms of his or her employment, and (ii) which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment. (4) For the purposes 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 on which the place of abode is situated… Claims by trade union representatives (cf former s 7 (1) (h)) 12 If: (a) a worker is an accredited representative of a trade union of employees, or other organisation of employees, of which any person employed by the worker's employer is a member, (b) with the consent of or at the request of that employer or pursuant to an industrial award or agreement, the worker is carrying out his or her duties as such a representative (whether at the worker's place of employment or elsewhere) or is on an associated journey, and (c) the worker receives a personal injury while carrying out those duties or on that journey, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly." 27. Mr Snell for the respondent referred to the decision of Hughes v Civil and Civic Pty Ltd (1995) 11 NSWCCR 27 on the operation of s 12, but submitted that this was distinguishable on the facts. The court in Bowden v. Murdoch's Ltd, (1951) 51 NSWSR 423 had addressed the concept of a journey under s 10 between 2 points. The case of Archer v. East West Airlines Pty Ltd (1976) 50 WCR 176 about a flight steward who was on call was irrelevant to the facts of Mr Thomas's case. 28. Mr Bleasel for the applicant submitted that, on 27 May 1994, the worker had been an accredited trade union representative and had been engaged on union business. The Court could conclude, as a matter of fact, that the worker fell within s 12 as he was on an "associated journey", as that phrase had been interpreted in Hughes v. Civil and Civic Pty Ltd, and s 10 had no application. 29. Ordinarily a journey has a place of departure and a place of destination. It is a question of fact whether a journey of a prescribed class or type has been embarked upon, has been terminated or has been interrupted or deviated from. The onus is upon the applicant to prove that he or she fits within the scope of the relevant provisions. The ambit of "the journey" in s 10 and its predecessor has been changed by legislative enactment a number of times in recent decades. After it was decided that a woman who hurtled off her bicycle and fell onto her driveway on her way home from work and received her injury on her own land had completed her journey and was not entitled to compensation (Williams v Ducon Condenser Ltd [1949] WCR 122), s 7(1) of the Workers Compensation Act 1926 was amended to delineate the commencing and finishing point of a prescribed journey as being "the exit of the flat or home unit" in the case of such residences and "the exit of the building or structure whereby he departed" in the case of other residential structures. In Williams, Judge Rainbow, in the absence of the law fixing any precise starting or finishing points, had held that "place of abode" should "mean and include the house or premises, the curtilage, messuage and appurtenances, if that be the correct conveyancing description of the whole of the land and boundaries of the homewhere the applicant resided". The space between the two points was the relevant place in which to sustain the injury. Subsequently s 10(4) of the Workers Compensation Act 1987 was amended to provide that a journey from, or to a worker's place of abode, commences or ends at "the boundary of the land on which the place of abode is situated". I observed in Eggins v Prospect Electricity, unreported, 30 August 1996, that sub-s (4) appeared to have returned the law to the position as it was in the late 1940s. 30. Legislative actions to alter the journey provisions were also commented upon by Priestley J A in Civil & Civil Pty Ltd v Hughes (1996) 13 NSWCCR 134 at 135, the appeal from Judge Davidson's decision, where he said - "The history of the "journey" provisions of the Workers Compensation legislation" shows that Parliament has from time to time widened and narrowed the scope of cover for workers on work-related journeys. This has included changes in the definition of "journey". For the sake of certainty some of the definitions of "journey" have, at the cost of some arbitrariness, fixed a precise starting point for a journey." 31. I deal with the question whether the circumstances of the 27 May 1994 incident fall within the provisions of s 12, which appear to supplement the provisions of s 10, but which do not specifically prescribe any limitations on the phrase "associated journey". Surprisingly the only 2 decisions that I have been able to identify are Hughes v Civil and Civic Pty Ltd (ibid) and Civil & Civil Pty Ltd v Hughes (ibid). 32. In Hughes v. Civil and Civic, the applicant for compensation appeared to have 2 statuses, namely a carpenter employed by the respondent and a trade union representative for the BWIU on the building site in Sydney at which he worked. He was shot within the confines of the block of flats in which he lived. On his evidence, he had begun a journey away from his flat on the trade union business to deposit union dues at the union office. It was a working day and he intended later to report for work. He had left his own flat but had not gone beyond the boundary on which the building stood. 33. Judge Davidson concluded that he was dealing with a person who had initiated a journey for a purpose connected with his position as a union representative and not as an employee. His Honour observed that, if he had accepted that the applicant had been going to the building site as a carpenter, and not to the trade union offices, the applicant would fail in his claim because the provisions of s 10 would apply. The purpose of the journey was significant. 34. Judge Davidson held that the "journey" set out in s 12 was not as restricted as journeys were under s 10. The then s 10(5A) - which stated that nothing prevented the payment for any compensation for any personal injury which, apart from this section, was an injury within the meaning of the Act - preserved the right to compensation for any personal injury which, apart from s 10, was an injury within the meaning of the Act. One such right was that given by s 12. It was held that s 12 provided a right to compensation for trade union representatives who were injured on journeys other than those that had the "place of employment", in the sense of the respondent's workplace, as their starting or finishing point. The cases of Bowden and Thornley v. Sydney Waterfront Watchmens Association (1942) 16 WCR 57, touching upon the interpretation of s 7(1)(g) were distinguishable. He held that the "associated journey in s 12 has not been made the subject of a defined commencing or ending point". He commented that had the legislature intended to restrict the commencing or ending point of a journey within s 12, it would have enacted a similar provision to s 10(4). 35. The decisions quoted touch upon erstwhile provisions relating to coverage of workers on prescribed journeys and, more particularly, where an actual journey may start or finish, having regard to specific statutory provisions. In Bowden v. Murdoch's Ltd the decision by the NSW Supreme Court on a stated case, where the worker was injured on a common staircase of a block of flats, was that the boundary which delineated the place of abode, at the time of the injury, was the entire building containing the 20 flats. The words "place of abode" fixed the starting point of the journey. Street C.J. followed an earlier decision of Moffitt J. in Thornley v. Sydney Waterfront Watchmens Association, adopting the reasoning that the legislature had in mind the necessity for protecting a worker when he was a traveller or wayfarer, and that this meant when he was using a place or way used by members of the community at large as a thoroughfare, whether as of right or not. He moreover justified this approach using the concept that a man does not become a traveller until he emerges from the premises which are his place of abode. The decision in Williams v. Ducon Condensers Limited was consistent with Thornley and considered in Bowden. 36. The Court of Appeal (Priestley and Meagher J J A, Cole J A dissenting), in dismissing the appeal in Hughes, ruled that where no precise arbitrary starting point for the "associated journey" had been defined, the Court's approach to giving content to the meaning of the undefined word should not be affected by present or past arbitrary definitions applying to other statutory provisions specifically enacted for the purposes of those provisions. Meagher J A said that there was nothing in s 12 that required restriction to the scope of the journey as was found in s 10, and that once the applicant left his front door the trial judge was entitled to conclude that the applicant was embarking on a journey associated with his responsibilities. 37. In his dissenting judgment. Cole J.A. referred to the second reading speech of the Attorney General and Minister of Justice, Mr Walker (at pages 141 and 142). The amending legislation addressed, inter alia, journeys between 2 places of employment where the worker had two jobs and journeys associated with a person's position as a union representative. The Minister said that "These circumstances (of a person injured whilst engaging in industrial matters concerning their employment) are connected with the person's employment and should come within the ambit of actions covered under the present legislation". 38. The facts in Mr Thomas's case are compared with those in Hughes. Mr Hughes was an elected trade union representative who was also a carpenter. Mr Thomas was an employee of the trade union, and had authorisation to act in industrial matters on behalf of the union. He left his house in the early hours of the morning to undertake duties on behalf of his employer, and this was unequivocally trade union business. He did not have a dual role like Mr Hughes. Judge Davidson made reference to Mr Hughes' dual role. Hence there is a distinction between the facts in Hughes and Thomas. I am dealing with a direct employee, whose employer's business is the operation of a trade union and the service of its membership. 39. There appears therefore to be no prior decision on the point whether an employee of a trade union has the option of claiming compensation under s 12 of the Act, rather than claiming under s 10 of the 1987 Act. 40. The textbook, Mills, Workers Compensation New South Wales, 1996, at page 1849 summarises what I understood to have been the intention of the legislation when extra coverage for union representatives was introduced, that the provision is intended to apply - "only to a worker who is in the employment of an employer and who is an accreditated union etc representative. For such a person the section creates a notional extension of the employment in the circumstances specified". That is to say, that the legislature recognised that workers who were also engaged in trade union business within their industry, on an elected and voluntary basis, would not be covered on journeys associated with such activities unless special provision was made for them. The question is whether that is the proper construction of the section. 41. Ordinarily, a normal employee will come within the constraints of s 10 on a prescribed journey. The "place of employment" need not necessarily mean the regular or principal place of employment, and that phrase has been interpreted to include most places at which a worker is with the authority of his employer, and for the purposes of that employment, an example being a restaurant for a work-related lunch (Alcatel Australia Ltd v. Griffiths, (1997) 15 NSWCCR 390). I do not think that any point was taken that the locations of a series of meetings that the worker had on 27 May 1994 were not "places of employment". 42. There are a number of rules of statutory interpretation that appear to be relevant to a consideration of the construction of s 10 and s 12 of the Act and their relationship. At common law there are two basic approaches to the interpretation of statutes; the literal approach and the purposive approach. The literal approach is to ascertain the intention of Parliament and this will frequently require addressing the language used in the statute. What does the language mean in its ordinary and natural sense (Amalgamated Society of Engineers v. Adelaide Steamship Company Ltd (1920) 28 CLR 129 at 161-2) - although this approach is modified if such grammatical and ordinary sense of the words would lead to some absurdity, repugnance or inconsistency with the rest of the statute, known as the golden rule (Grey v. Pearson (1857) 6 HLC 1216 at 1234 (Lord Wensleydale)). However when the study of the language leaves the Court in doubt as to the meaning of the provisions, regard can be had to the reasons why the Act was passed - the purposive approach (Statutory Interpretation in Australia, Pearce and Geddes, Butterworths page 24). 43. In New South Wales, the Courts are enjoined to apply the purposive approach in s 33 of the NSW Interpretation Act 1987 which states - "33 . In the interpretation of a provision of an Act or a statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose of object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." 44. In Kingston v. Keprose Pty Ltd, (1987) 11 NSWLR 404, McHugh J.A. as he then was, outlined the purposive approach to statutory interpretation. At 423 and 424, he declared that the purposive approach prevailed, that the starting point was the search for grammatical meaning and that the function of the court was one of construction and not legislation. He stated - "A rule of law enacted by statute consists of a proposition which gives rise to legal consequences when the act or omission of some person falls within the factual outline delineated by that proposition. The proposition may be neatly contained in a single sentence; or it may only be deducible from an examination of a number of sentences in a number of sections or paragraphs. Once deduced, the proposition is taken to represent what Parliament intended to enact. The difficulty is to determine whether Parliament intended a particular set of facts to fall within the factual outline of the proposition. That is, the difficulty is to determine the ambit of the factual outline which Parliament intended to enact........ Purposive construction often requires a sophisticated analysis to determine the legislative purpose and a discriminating judgment as to where the boundary of construction ends and legislation begins. But it is the technique best calculated to give effect to the legislative intention and to deal with the detailed and diverse factual patterns which the legislature cannot always foresee but must have intended to deal with if the purpose of the legislation was to be achieved............ Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object. Where the court can see the purpose of a provision from an examination of its terms, little difficulty should be met in giving effect to that purpose.........." 45. S 34 of the Interpretation Act lists a number of aids to ascertaining the purpose of a provision but ultimately a court will have to determine whether the purpose has been achieved with the form of words used. 46. Section 12 of the 1987 Act refers to a worker being an accredited representative of a trade union of employees of which any person employed by the worker's employer is a member, and with the worker carrying out duties as such a representative at the request of or with the consent of the employer, or pursuant to industrial award. The occurrence of an injury during those duties or on an associated journey is deemed an injury arising out of or in the course of employment. The words seem to suggest that the workers who were intended to be covered were and are those workers who would not be covered for their activities, under other provisions, whilst they were carrying out activities for a trade union. 47. Clearly there was no need to give the benefit of the first part of the provision to an employee of a trade union because he or she was already covered under the general provisions of the statute for injuries arising out of or in the course of the employment. 48. One one interpretation of s 12, that urged by Mr Bleasel, the provision would give an enlarged coverage to trade union employees only. If such an interpretation was adopted, that would seem to me to give a significant extension to such employees and render s 10 otiose for trade union employees. This type of discrimination was not suggested to be an object in the second reading speech, rather the amendments were aimed at adding to the scope of coverage in an incremental way, because the perceived "defect" being remedied was the worker whose trade union duties took that worker outside the course of his employment with his employer and whose journeys for union purposes did not fit within the "course of employment" or the then prescribed "journey" provisions. 49. I have concluded that the entitlement of a worker such as Mr Thomas, acting as an employee (who was also accredited) of the union are regulated by the provisions of s 10 and not by s 12, whose purpose is to extend coverage to workers who are engaged on associated journeys in connection with the additional activities of union business. 50. The case of Archer v East West Airlines Pty Ltd (1976) 50 WCR 176 dealt with another point entirely, whether the course of employment extended to the reasonable and normal use of a worker's home whilst remaining there so as to be available at call, as and when required by the employer. Chief Judge Langsworth held that the worker was on duty at home on the reserve day as required by the terms of her employment. This decision is quoted I take it, in reference to the worker's evidence of being on call 24 hours per day. 51. In Mt Thomas's case, there was no compelling evidence before the court that being on call 24 hours a day was a condition of the contract by the worker with his employer, and no evidence of remuneration to recognise any "on-call" position. There were obviously expectations of the representative being highly flexible in his working hours. It is highly unlikely that an organisation whose raison d'etre is the welfare and working conditions of their members would be likely to impose on their own employees such harsh conditions of being on call 24 hours per day. The union employee, who was required to work flexible hours, is most likely to have had these recognised to some extent in some provision for time off in lieu after the peaks of demand were met. 52. Because I have so determined the above questions, it follows that the injury sustained by the worker on the grounds of his residence on 27 May 1994 does not attract the benefits of the Workers Compensation Act, and I shall have to regard any injury and resulting permanent disability as being in existence at the time of the work injury in July 1994. Conclusions and Findings 53. The applicant had a frank back condition in 1994 diagnosed after the "second injury" and his continuing symptoms appear to be consistent with an unresolved disc injury, which manifested itself in some left sided sciatica. The condition has not been too limiting because Mr Thomas was able to drive a motor lorry for two years and has been able to hold down a job as a transport manager, albeit without stressful pressures on the back, since about 1996. 54. On the evidence reviewed in this judgment, I find that the worker has an 18% permanent impairment of the back. I consider that the worker sustained a disc injury in the incident on 27 May 1994 and that this injury was further aggravated by the work injury on 4 July 1994. After allowing for some pre-existing degenerative disease in the back prior to 27 May 1994 and for the effects of the May 1994 injury, I find that the worker has a 6% permanent back impairment (or 1/3rd of total impairment) resulting from his work injury. 55. As to the claim for loss of efficient use of the left leg, whilst I consider that his general mobility has been compromised by his unrelated right leg problem, there is sufficient evidence to conclude that the left leg permanent loss of efficient use at or above the knee amounts to 12% due to the pain radiating from the back. In accordance with the provisions of s 68A of the Act, a 4% loss is compensable in relation to the July 1994 injury. 56. The worker's claims do no reach the threshold to award pain and suffering for his losses. Award and Orders 57. I make an award in favour of the applicant worker, ordering the respondent to make payments under s 66 of $3,600 for back inmpairment and $3,000 for loss of efficient use of the left leg, together with a general s 60 order and an order that the respondent pay the applicant's costs of the proceedings. Appearances Mr M Bleasel of counsel instructed by Messrs Bell and Partners appeared on behalf of the applicant. Mr M Snell of counsel instructed by Messrs Grahame Goldberg Partners appeared on behalf of the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.