Ballandis v Swebbs & Anor [2015] QCA 76

Morrison JA with whom Fraser and Gotterson JJA agreed:

[9] To explain the context of the main issue it is useful to first mention section 5(1)(b) of the Civil Liability Act, which provides:

“(1) This Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm[2] resulting from the breach of duty is or includes—

(b) an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies”.

[10] As can be seen, s 5(1) commences with a provision that the Civil Liability Act does not apply to some awards of damages. Section 5(1)(b) relevantly provides that the excluded awards are those where the harm caused includes an injury which attracts compensation under the Workers’ Compensation and Rehabilitation Act. However s 5(1)(b) then adds a proviso, limiting the excluded awards. Where the harm caused includes an injury to which s 35 of the Workers’ Compensation and Rehabilitation Act applies, the exclusion is not applicable.

[11] The convoluted language of s 5(1)(b) means that if compensation for the injury to Mr Ballandis was covered by s 35 of the Workers’ Compensation and Rehabilitation Act, then the Civil Liability Act applied.

 …

[19] First, s 35(1) is, in effect, a deeming provision. It provides that an injury which happens on a journey between the place of employment and the worker’s home is taken to arise out of, or in the course of, the worker’s employment. It operates so that even if the injury does not actually arise out of, or in the course of, the worker’s employment, it will be taken to do so, if it occurs on the journey between home and the place of employment. On its plain words it applies even if the employee has finished work or is not then performing any work under their employment. Thus it applies to a journey outside working hours, such as to the workplace before work starts, or home after work has finished for the day, just as much as it does to a journey during working hours.

[20] Because it applies even where the employee decides how and when the journey is undertaken, the provision does not depend on any element of control by the employer over the employee. It applies equally to a situation where the employee tells the employee how to get home, and provides the means (such as letting a vehicle be used, or providing a bus ticket or cab fare), as it does to where the employer says and does nothing at all.

[21] Secondly, implicit (or perhaps explicit) in the contentions is that the “place of employment” for the purposes of s 35 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) included the utility itself. The term “place of employment” is defined in Schedule 6 to the Act as being:

“…the premises, works, plant, or place for the time being occupied by, or under the control or management of, the employer by whom a worker concerned is employed, and in, on, at, or in connection with which the worker was working when the worker sustained injury.”

[22] A vehicle used to drive home after work, even if it is provided by the employer, would not be “premises” or “works”, nor would it readily fit within “place”, which seems to refer to a location. It might be “plant” but that contention confronts the requirement for “control or management” by the employer, which was absent here. Similarly it confronts the additional requirement, “in … or in connection with which the worker was working when the worker sustained the injury”. Mr Ballandis was not working when he sustained the injury.

[23] In Clement v Backo & Anor[25] mine workers took advantage of a lift home from a co-worker, Mr Backo. They had not left the land on which the mine was located when they were injured because Mr Backo lost control of the car. As to the application of s 35 to those facts, Dutney J said:[26]

“Once the workers cease their physical activities, get into the vehicle in which they are to be driven home, leave the place where they had carried out their activities and drive in the direction of home, it seems to me to be unrealistic to say they have not left the place of employment or commenced the homeward journey.”

[24] Thirdly, the mere fact that Mr Ballandis was driven home in a utility provided by his employer does not compel the conclusion that his employment was a significant factor in his being injured. The employees had finished for the day, clocked off, and were heading home. They detoured to the house of one of Mr Wright’s friends so Mr Wright could see him, but he was not in and “we continued to head home”.[27] Beyond providing the utility to Mr Wright, Mr Thorpe had nothing to do with where they went after work.

[25] Fourthly, the contentions proceed on the basis that the employees were still at the “place of employment” until they exited the utility back at their unit. That would mean that the only scope for the operation of s 35 of the Workers’ Compensation and Rehabilitation Act was the “journey” between the parked utility and the unit.

[26] Fifthly, such a conclusion would attribute a degree of control over these employees that the employer did not accept, or wield. Mr Thorpe did not accept that he could, or attempt to, direct what they did once they left the worksite.

[27] Sixthly, Newberry and King are distinguishable. Newberry involved a claimant who was injured while being driven in the course of his duties, but the injury happened when another driver crossed onto the wrong side of the road. Thus, his employment had nothing to do with the breach of duty or injury. Further, no question of the application of s 35 arose. In King the claimant, a postman, was driving in the course of his duties. He was required to drive on footpaths and that led directly to his injury which resulted from a car reversing out of a driveway.

David Cormack – Brisbane Barrister & Mediator

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