Industrial Relations Commission New South Wales Medium Neutral Citation: Fox v NSW Police Force [2012] NSWIRComm 1005 Hearing dates: 08/03/12 Decision date: 11 April 2012 Before: Ritchie C Decision: Catchwords: Police officer filed Notice of Appeal-Hurt on Duty. Officer left home to drive to work-realised had left glasses and USB at home- returned to home parking within the boundaries of his abode- given glasses case by wife turned to return to return to car and fell breaking his leg. Claim by appellant that it was only one journey involved or in the alternative he was on duty at the time. Respondent argued that he had completed one journey and had yet to commence his second journey and that point on injury not on duty. Found in favour of respondent that appellant had completed one journey and had yet to commence second journey, and that the accident did not arise out of his employment nor was his employment a substantial contributing factor . Appeal denied. Legislation Cited: Police Act, 1990: Workers Compensation Act, 1987 Cases Cited: Williams v Duncan Condenser Ltd (1949) WCR (NSW) 122: Calvert v Soden (1994) 10 NSW CCR 139: Athval Management Pty Ltd v Doherty (2000) 220 NSWCCR 687: Minchinton v Homfrey (1994) 10 NSWCCR 778: Vetter v Lake Macquarie Council (2001) 202 CLR 439: Badawi v Nexon (2009)7DDCR 75:Maurino v Amberlor Pty Ltd (1996)CCR 16: Smith v Brown (1998) NSWCC Category: Principal judgment Parties: Mr Peter R. Fox (Appellant) New South Wales Police Force(Respondent) Representation: Mr T Owers (Appellant) Mr J Sharpe (Respondent) Harris Wheeler Lawyers (Applicant): TressCox Lawyers (Respondent) File Number(s): IRC 194 of 2011 DECISION Introduction 1The appellant in accordance with s. 186 of the Police Act,1990 appealed to the Industrial Relations Commission against a decision of the Commissioner to grant or refuse leave of absence on full pay to the appellant during any period of absence caused by the appellant being hurt on duty within the meaning of section 1(2) of the Police Regulation(Superannuation ) Act, 1906. Issue(s) 2Appeal by Peter Raymond Fox against a decision of the Commissioner to grant or refuse leave of absence when hurt on duty. 3The appellant filed a Notice of Appeal-HURT ON DUTY completing the form on 21 February 2011. 4On 29 December 2010 the appellant left his place of residence in uniform, in a marked police car at or about 6.15 am to travel to Raymond Terrace police station. After driving for approximately 3 to 4 minutes he realised he had left his reading glasses, together with a USB stored in his glasses case. He therefore returned to his home to collect the items. 5He drove into his property got out of his car, leaving the engine running and met his wife on the front porch who handed him the glasses case. He then began to walk towards the police vehicle when his wife called to him for a farewell kiss and in the process of doing so he fell. The injury sustained was a broken leg. 6Those facts are not in dispute between the parties. Respondent's and Appellant's Cases 7It was the respondent's submission that it denied that the injury of 29 December 2010 was Hurt on Duty. The only relevant journey is one that falls within s 10(1) and s. 10(3) (a) of the Workers Compensation Act (WC Act) . Subsection 10 (4) makes it clear that it is the boundary of the land as being the defining point. The basis for this denial was that the accident occurred within the boundary of the appellant's home. The onus falls on the appellant to show that the journey is one which falls within the Act. 8In Williams v Duncan Condenser Ltd (1949) WCR (NSW ) 122 demonstrated that once the worker crossed the boundary of the place of abode the journey had ended. In Calvert v Soden (1994) 10 NSW CCR 139 Johns J pointed out the absolute nature of s 10(4) regardless of the worker's claimed intention. In essence it did not matter what the worker's intentions were, but whether the journey had in fact commenced from the boundary. The onus is only discharged by adducing evidence of where the journey began in relation to the boundary Athval Management Pty Ltd v Doherty (2000) 220 NSWCCR687. 9 The reason for the appellant's return trip home was irrelevant. The first journey had ended and a fresh journey was to then commence but he had not reached the boundary of his place of abode when he was injured. 10The appellant stated that it was their submission that the injury sustained on 29 December 2010 occurred in the course of his journey to work. This journey began when he initially left his home that morning. A "journey" to which s 10 applies should be construed as a " spell of going or travelling viewed as a distinct whole " (per Mahoney JA in Minchinton v Homfray (1994) 10 NSWCCR 778 at 775G and cited with approval by the High Court in Vetter v Lake Macquarie Council (2001) 202 CLR 439. 11The appellant's intention after first leaving home on 29 December 2010 was to proceed to the Raymond Terrace police station. This intention to travel to work was not abandoned by his return to his home briefly to pick up his glasses case containing his glasses and the work USB. His intention was to proceed to the police station , including the period involving his return home to pick up his glasses case, is properly construed as a single "journey" within the meaning of s 10 of the WC Act. 12The respondent submitted that it would be wrong at law to construe the circumstances as demonstrating multiple discrete journeys. 13The appellant submitted that this return trip did not involve any increase in the risk of injury. Accordingly, the disentitling exclusion in s10(2) of the WC Act did not apply. The injury occurred in the course of one journey and is therefore compensable as Hurt on Duty. 14In the alternative, the appellant could be construed as having been injured in the course of his employment. From the time he entered his marked police vehicle and turned on his police radio, he was available to respond to any broadcast over the radio. This the appellant stated has previously occurred and he would be redirected to perform his duties at another location other than Raymond Terrace. Accordingly he was officially on duty at all relevant times after switching on his police radio. That he required his glasses and USB for the further pursuit of his duties was sufficient to demonstrate that the retrieval of these items was sufficiently connected with his duties to constitute a substantial contributing factor to this injury (see Badawi v Nexon (2009) 7DDCR 75) Considerations 15The sections of the WC Act relevant for this matter are: a)4 Definition of "injury" (cf former s 6 (1)) In this Act: "injury": (a) means personal injury arising out of or in the course of employment, (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies. 10 Journey claims: (cf former s 7 (1) (b)-(d), (f), (g)) (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. (1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker. (1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999 ), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. (1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury. (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 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. (5) For the purposes of this section, if the worker is journeying from the worker's place of employment with one employer to the worker's place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer. (5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act. (6) In this section: "educational institution" means: (a) a trade, technical or other training school, or (b) a university or other college or school providing secondary or tertiary education. "night", in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker's employment. "place of abode" includes: (a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and (b) the place to which the worker is journeying with the intention of there spending the night following a journey. 16From the appellant's submission, the journey that commenced at approximately 6.15am from his home to go to work at Raymond Terrace Police station, then returned to home after travelling a short distance before intending to travel to the Police station was to be one journey. A deviation in returning home, but one that did not materially increase the risk of injury. He had by leaving his home at 6.15 am commenced his journey. 17 Also it was argued that the appellant was injured in the course of his employment in a journey which is caught by s.4 and s.10 of the WC Act. The appellant drove a police marked vehicle and through the police radio is on call the moment he drives away from his home. The act of picking up his spectacles and the USB is an act incidental and closely related to his work, so it falls under s.4 as well. The Case of Maurino v Amberlor Pty Ltd (1996) CCR 16 was quoted where an employee using his own car to carry cleaning materials and tools provided by his employee was involved in a car accident due to his own negligence. The employee received an allowance for carry the materials. It was found that the injury was in the course of his employment. Also was quoted Smith v Brown (1998)NSWCC in which the transporting of workers from one location to another and the vehicle overturned was held to be in the course of employment. 18It was the respondent's submission that for the appellant to bring himself within the provisions of the legislation namely s. 10(1) and s.10(3)(a) of the WC Act is the journey from his home to work and or return to home. Once he went home, then he could no longer rely upon the previous departure and was then bound by the provisions of the WC Act. Athal Management Pty Ltd v Doherty (2000) NSWCA277 was quoted as the journey only commencing when the boundary of the property was crossed, and Calvert v Soden (1994) CCNSW Vol 1 139. which stated that : It is clear that the section as it now stands has rationalised the termination of journeys between normal residence such as private houses and flats. In both cases the termination of the journey is the boundary of the land upon which either the private house or the flat building stands. It is clear that once the boundary of the land has been crossed on which the flats were located the journey has either begun or ended. In this case a nurse on her way to work slipped on stairs within her building and broke her ankle. Compensation was denied. 19In Williams v Ducon Condenser Limited (1949)WCR (NSW) 122 it was stated that a person rode her bike home from work when she lost control of the bike outside a gate of her home and she received injuries by falling on the driveway inside the gate. It was held that the injuries were received at the applicant's place of abode, and accordingly refused compensation. 20The respondent submitted that as soon as the appellant went back into his property that was the end of that journey. He then starts a new journey. That he returned home to obtain something was of no matter. Findings 21It is my finding that the accident that the appellant suffered on 29 December 2010 occurred within the boundaries of the appellant's abode post the completion of his first journey and prior to the commencement of his second journey. It is clear from a reading of s. 10(4) of the WC Act that he was not at the time of his accident taking part in a journey either to work or from work. 22The appellant's alternative submission was that he was injured in the course of his duties. The retrieval of the glasses case and the USB for the further pursuit of his duties was sufficient to demonstrate that this retrieval was sufficiently connected with his duties to constitute a substantial contributing factor to his injury. 23In Badawi v Nexon Asia Pacific Pty ltd (2009)NSWCA 324 it states: It was not disputed that the requirement imposed by s 9A that the " employment concerned" was a "substantial contributing factor" involves a causative element. The language of the provision makes that plain. The question is whether it is different or an added requirement to that involved in that limb of s4, which defines injury as "arising out of employment". The appellant got out of his vehicle which was on his property, proceeded to his front porch where his wife handed him his glasses, then began to walk towards his car when his wife called to him for a farewell kiss and in the process of doing so he fell and broke his leg. 24Having considered the matters as expressed in s 9A (2) of the WC Act, and applied them to this matter, I do not find that this accident arose out of his employment or that his employment was a substantial contributing factor. I agree with the example given by Mr Sharpe for the respondent, of the appellant going out to his car in the middle of the night and trips, falls and injuries himself could not be described as being in the course of his work. 25 It was an accident that happened to take place within the boundaries of the appellant's abode. 26 In summary, the accident itself was most unfortunate for the appellant but I do not find in his favour with respect to his Notice of Appeal-Hurt on Duty. Order(s) 27I dismiss the appeal in matter number IRC 11/194. D. Ritchie Commissioner 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. Decision last updated: 11 April 2012