AT BALLARAT
Case No. B12546204
MALCOLM LEONARD FLETCHER / Plaintiffv
AMRS (AUST) PTY LTD and VICTORIAN WORKCOVER AUTHORITY / Defendants
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MAGISTRATE: / Magistrate B WrightWHERE HELD: / Ballarat
DATE OF HEARING: / 20 April 2012
DATE OF DECISION: / 2 May 2012 (at Melbourne Magistrates Court)
CASE MAY BE CITED AS: / Fletcher v. AMRS (Aust) Pty Ltd
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Termination of Benefits – Denial of Work Related Injury – Whether Worker Injured In Course of Employment or “Incidental Thereto” – Place of Employment - Whether Worker Travelling for Purposes of Employment – Accident Compensation Act 1985 ss 82(1), 83(1)(b) and (2)(a)
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APPEARANCES: / Counsel / SolicitorsFor the Plaintiff / Mr J O’Brien / Ryan Carlisle Thomas
For the Defendant / Ms M Britbart / Herbert Geer
LEGAL TRANSCRIPTS PTY LTD
Suite 18, 600 Lonsdale Street, Melbourne – Telephone 9642 0322
HIS HONOUR:
1 Mr Fletcher seeks weekly payments of the “no current work capacity” rate, together with reasonable and medical like expenses, for an injury to his right arm. The claim substantially relates to a second bout of surgery for a fracture dislocation of the right elbow for which he was off work from 17 November 2011 to 22 February 2012.
2 He is a 59-year-old meter reader who originally injured his right arm on 24 November 2008 when he tripped while getting over a low chain fence around a car park. His initial workers compensation claim was accepted for that injury. However, within two weeks of the acceptance of the initial claim a notice of termination was served. Despite this, he was still paid weekly payments for 13 weeks incapacity, together with reasonable medical and like expenses for the initial surgery, during that period.
3 The defendant contracts with various water and electricity companies to read and supply meter readings around Victoria. Mr Fletcher mainly worked in the Ballan-Bacchus Marsh area. He was one of five or six such meter readers in the Ballarat area.
4 He would be paid solely based on the actual numbers of meters read. The rate would vary if he was in a rural area or closely settled urban area. He would use a handheld computer device to read the meter. Generally, once per day he would attend a rented small room on the second floor inside a commercial building in Sturt Street Ballarat (“the office”).
5 The office had a computer, fax machine, telephone and a couple of desks and chairs. It also held a cupboard which contained various keys to certain customers' premises. He was required to attend the office, and generally did so, once per day to upload the information into the handheld device from the computer there. He would also download details of the area and meters he was required to read on the next day.
6 He would generally do this at the end of each day and thus only pay one visit to the office each day. He worked generally 30 hours per week over a four day working week. There was a discretion to read meters a few days early, though he had to do them within one day after the allocated date.
7 He was supplied with a work car and fuel to do his rounds. He was required to garage the car at home and not to use it for any private purposes. This is an important aspect of the claim and was not contested by the defendant. I accept his evidence in this regard. The defendant's request was understandable as there was no evidence of any other work premises in Ballarat for the purposes of garaging, apart from the one room office in Sturt Street.
8 On the late afternoon of 23 November 2008 he was unable to download his meter run for the next day at the office because of a computer fault. On 24 November 2008, he had the same problem in the morning and telephoned the central office. He then waited at home and was telephoned when it was rectified. He then went back to the office and downloaded his meter run details. He was late finishing that days meter run because of the delay and got back to the office late. He uploaded the details and downloaded the next days run.
9 As he had finished his meter run late there was nobody else there at the time. After finishing, he locked the door to the office, went down some exterior timber stairs at the back of the building and walked across an enclosed open parking area at the rear of the building. He had parked his car in the street at the back of the building opposite the external back stairs. He had never used the car park area at the back of the building to park his own car, as it was generally full when he was there. It was surrounded by a low-slung single chain fence running from knee height to lower shin height between white posts at intervals.
10 He had not been told that his employer had a right to use any of the spaces in the car park as an occupier or tenant of the room in the building. He had observed logos on the back wall of the building in the car park. In addition, he had observed tenants or workers in the building using the car park area. The car park had no car park spaces marked out. Beside the vehicle entry, it had a sign stating "Private parking. No entry".
11 As I stated previously, on the evening of 24 November 2008 he walked down the external staircase and continued walking directly across the car park towards his work car which was parked just on the other side of the chain fence. He stood just inside the fence with his left leg next to the fence. As he lifted his right leg to step over the fence, it caught in the chain. His forward momentum continued and he fell to the footpath on the other side of the fence beside his car. As he fell he tried to protect the handheld computer device in his left hand and his right hand hit the ground. He could not remember where he was exactly when he lay on the ground.
12 He had fractured his right arm. He rang his daughter on his mobile phone to take him to the hospital. A passer-by used the medical kit in his car to strap his right arm. At the Ballarat Hospital he underwent surgery and had internal fixation placed in to his right elbow. He was off work for 13 weeks and then returned to work with the defendant. Some time later he changed employment to a different company doing similar work.
13 Last year he was having problems with the right elbow and was referred to another orthopaedic surgeon in Ballarat, a Mr Csongvai, decided to re-operate. Mr Fletcher had that further surgery being off work from 17 November 2011 to 22 February 2012. He seeks weekly payments for this period in the amended Prayer for Relief, together with reasonable medical and like expenses.
14 As I stated at the start of this decision, his initial claim form for the injury sustained in the fall on 24 November 2008 was accepted. However, the authorised agent terminated his entitlement by way of a Notice dated 16 February. In that Notice, it alleged he had no WorkCover entitlement arising out of the circumstances of the fall. Despite this notice his weekly payments and reasonable medical and like expenses for the initial period in 2008 to 2009 were paid anyway. These proceedings arise out of that Notice.
15 Both sides put their submissions simply. Counsel for Mr Fletcher submitted that he was injured in or at the boundary of the car park part of the premises and was such injured in the course of his employment having not left the work premises. Alternatively, he submits that Mr Fletcher was "travelling for the purposes of his employment” pursuant to s.83(1)(b) or was in circumstances “incidental to” his employment. Thus, he submits Mr Fletcher is deemed to have been injured arising out of or in the course of employment. The travelling was constituted by the fact that he was about to drive his work car home to garage it there as required by the defendant.
16 Counsel for the defendant submitted that the car park did not form part of the defendant's premises. There was no evidence to suggest that it did and thus he could not have been injured at his place of employment. Thus, she submits he was not in the course of his employment. The defendant submitted that in any event he was injured when he hit the footpath outside the car park. It simply submitted that he had finished work for the day and was on his way home, thus being injured in circumstances outside his employment and not incidental thereto.
17 I will consider the s.83(1)(b) point first. On the evidence, I find that having regard to the nature of his employment and any specific tasks requiring him to travel, that he was travelling for the purposes of employment. Thus, the injury is deemed to have arisen out of or in the course of the employment.
18 The nature of his employment required him to travel to read electricity meters in a large area. Depending on his downloaded meter run on a daily basis, he could be in any particular part of that large area. His place of employment was not the first meter he had to read, the last meter he read or the small office where he would upload and download the necessary information.
19 Thus, the journeys from his place of residence to the first job or from the last job to his place of residence were not unprotected journeys. As there was no fixed place of employment, the whole area, scope or ambit of employment needs to be considered (see, s.83(2)(a)). Of course, the fact that he was injured at a or the “place of employment” does not give an absolute entitlement to workers compensation in all cases. The former s83 (2)(a)(i) giving such an entitlement was removed by Act No. 67 of 1992.
20 In the circumstances of this case, I do not consider his daily attendance at the Sturt Street premises as being significant in terms of indicating the cessation of his employment activities on any particular day. He was able to, and did in fact, attend those premises at different times of the day. His attendance there should not be given any greater prominence than simply being one “port of call” on any particular working day.
21 My above finding is further enhanced by the fact that he was walking towards his work vehicle with a view to driving it home where he was required to garage that vehicle. The work vehicle was not able to be used for private purposes. Therefore, the specific task of taking his vehicle home was a task requiring him to travel accordingly to his home. Thus, he was travelling for the purposes of his employment.
22 The facts of this case are very different to that in my decision I handed in O'Dea v. L'Oreal (del. 15 February 2012). In that case, the worker was injured while in the course of a journey from her residence to her fixed and single place of employment.
23 Further, I find that Mr Fletcher was injured in circumstances incidental to his employment. As Mr Justice Kyrou stated in Reid Stockfeeds v. Lindhe [2008] VSC 304 at para 15:-
"The words, 'in the course of' employment indicate the work or services that the employee is required to perform and anything which is incidental to the work or service. There need not be a causal connection between the employment (or its incidents) and the injury.”
As Justice Kyrou points out at para 17, it is necessary:-
"That there be a nexus (which sometimes can be very slight indeed) between the relevant activity and the work or service that the employee is employed to perform, with most cases specifically referring to that activity as being incidental to the work or service".
24 This is known as the “Henderson” principle after the High Court Decision in Henderson v. Commissioner for Railways (WA) 1937 58 CLR 381 at p.294.
25 In this particular case, I do find there is such a nexus between the activity of walking to the work car to drive it home for the purpose of required overnight garaging. This was something he was "reasonably required, expected or authorised to do in order to carry out his actual duties" (see, Henderson v Commissioner for Railways (WA) (supra) at p.294).
26 For the sake of completeness, I should consider the other arguments by counsel. I do not accept that the car park at the rear of the Sturt Street premises formed part of the employer's premises. On the material before me there was no evidence that the defendant rented (or owned) any more than one single room on an upper floor there.
27 There was no evidence in any event that the defendant had any right to use the car park or indeed any other tenant of the other businesses in that building had that right.
28 In any event, it could be said that Mr Fletcher did not injure himself in the car park. He injured himself when he hit the pavement outside the car park having “exited” the car park in a manner of speaking. I refer to the decision of Judge Croyle in Hunt v. ACC [1988] 1 Vic ACR 386.
29 As I found in favour of Mr Fletcher at least on the s.83(1)(b) and the “incidental to employment” points, he is entitled to the compensation benefits as sought.
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JAG / 7 / DECISIONFletcher v. VWA