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").

First issue: Evidence to establish that the worker crossed over the boundary of his property on his return from Wedderburn 10. The evidence on this issue was cited by the Commissioner in his reasons and needs to be again cited here. In chief, this was said:

Q. So you went out to these fire trails, you said to Wedderburn, and what did you do after you finished out there. A ---I headed back towards home, and then as I pulled up in the driveway I thought, like wow, I haven't heard from him. Could've - many reasons, maybe out of range, couldn't hear it over the bike, so I thought instead - Q. What time was that do you think you arrived - A---Probably about 3.30. COMMISSIONER Q. You actually arrived home. A---Yes, pulled up. MR JOSEPH Q. So you have arrived home at 3.30. You are in what gear. A---I'm in dirty work - not work gear - dirty bike gear with riding boots, helmet, jackets. Q. So you arrived home and you realised you had not heard from him, right. A. Yes. Q. What did you then decide to do. A---I decided like just to head straight down there to find out - Q. Down where. A---Down to work to find out if the job was on, get ready to load the truck and find out what's involved in it. Q. Why did you decide to head straight down on the bike rather than, say, make a phone call. A. Saves getting off, going inside. I was in work boots. The house was locked up, gates were locked up, alarms on, so I just decided to head down.

In cross examination this evidence was given:

…What I am asking you though is, can you for instance - are you absolutely certain that you went to the house before you decided to go back to the factory. A ---Yes. Q. Absolutely certain about that. A---Yes. Q. You did not just come to you while you were riding back and you did not stop at all and you kept going. A---No. Q. Are you certain about that too. A---Yes I pulled up in the driveway and that's when I thought about it all. Q. That is when you thought about it all. A---Yes. Q. You have of course been asked to give a couple of statements about this, have you not. A. Only one. DISCUSSION MR NOCK Q. Just have a look at this document first of all and have a look at signatures at the bottom. Just make sure that you have seen that document before and that you recognise the signature. Is that right. A. Yes. Q. That is the statement you gave in August of last year about this accident to an investigator. Is that right. A---Yes. Q. Just looking there you were asked by the investigator to give the circumstances of the accident, were you not. A---Yes I was asked, yes. Q. You were asked to tell him what had actually happened. Is that right. A---(No Audible Response) Q. Would you have a look at paragraph 3. Have a look there and I suggest to you you said this. "I went for a ride on my motor bike to another suburb called Wedderburn where there are fire trials and tracks through the scrub land. When I finished out there I headed back towards home. Then I remember about work so I decided to head down to work to see about the job, if I had to do it and also to load the truck so that I wouldn't have to come in early in the morning to do it." Do you see that. Do you see all that. A---Yes. Q. Do you agree with me you said nothing there about returning to your house and about deciding to leave your house to head to work. Is that right. A---That's what it reads there, but what I actually did was different. Q. So the statement is wrong. A---Yes to me these statements were more like answering questions to the bloke. Q. When you received this statement in its typed form, did you read it. A---Yes. Q. After you read it, you signed it. Is that right. You cannot just shake your head. You have got to say yes because it is being recorded. You do not have any problem reading, do you Mr Pickwell. A. No. Q. You understood what was in the statement. A---Yes until now. Q. Until now but now you say there is a bit more to it. Is that right. A---Yes I just -everything not worded in here - Q. Everything is not worded in there - A---How much ............. 11. I have previously pointed out that the evidence discloses that the worker's place of abode was a "house" and that it was in or very close to the CBD of Campbelltown. It can now also be seen that there was a driveway and that there were gates. Where the gates were, the evidence does not disclose. They may have been on the boundary of the property or they may have been in a fence dividing the front yard of the property from the backyard. There is no description of the street or of the driveway. 12. After reciting the evidence I have just quoted the Commissioner said: 11. Whilst the respondent might direct me to some possible variety of interpretations in these accounts, particularly in relation to the question as to whether Mr Pickwell actually pulled in to his driveway, I am satisfied on the balance of probabilities that the applicant did, in fact, ... "pull (ed) up in the driveway...". I accept Mr Pickwell's evidence given in the witness box to the Court and indeed I should indicate at this stage that I considered him to be a witness of truth who attempted at all times to be frank and accurate in the giving of his evidence. I consider it entirely feasible that the answers given to the investigator, and the consequent statement, and the evidence about pulling up in the driveway may not necessarily have been inconsistent. There is simply more detail in one version and indeed Mr Nock's questions are put on that very basis. 12. The respondent, in any event, seized upon the "driveway" issue. Mr Nock submitted that even if one was to accept that Mr Pickwell pulled into the driveway, that fact should not be looked at in isolation as determining any issue of "boundary" in the applicant's favour. He contends that the Court must have regard to other relevant evidence on this point and in particular to Mr Pickwell's evidence that ... "the gates were locked up ...". With that evidence in mind Mr Nock made the following submission; Commissioner, without any further evidence the only inference that you can draw from that is that the gates to the property were shut and that the applicant never crossed the boundary of the land without, as is required to under section 10 and you would be well aware Commissioner of the long experience of senior counsel acting for the applicant in this regard and that if it were thought that the truth of this matter was that he entered across the boundary then one would expect there to have been an attempt at least to establish that he entered the property and not to leave it open to the inference in the way that Mr Joseph may suggest applies. We would suggest that it would be contrary to any inference to draw an inference contrary to the evidence, to draw any inference that he had actually crossed the boundary. Now it is as simple as that Commissioner and if the applicant had entered the premises and gone inside or gone into the driveway and up to his garage or whatever might be there we would have heard about it but he did not and we know the gate is locked. There is no attempt to identify which gates, where they were, anything, but that is the onus and it is a very strict onus because that is why the Act was amended to give clear indication to courts that the journey must commence at a particular point. It was to avoid all those cases that you have no doubt heard and heard over the years of people coming out of blocks of flats and premises and so forth and it was made specifically for that. 13. I am not convinced that the respondents submission is correct in this regard. It does not follow to conclude that Mr Pickwell had not crossed the boundary upon which his home was situated when he pulled up in the driveway...". Indeed by pulling up in the driveway, the contrary is suggested. It should be emphasised that it is the unchallenged evidence of the applicant that he pulled up in the driveway. The respondent's submission would, of course, have more merit had Mr Pickwell stopped in the street outside his house but he doesn't do that. He ... "pulls up in the driveway..." and on the balance of probabilities I would conclude that he was on the property upon which his place of abode was situated and had crossed the boundary of his property in reaching that point "in the driveway". Further detail discussion and reasoning in relation to this point follows later in these reasons. 14. The respondent contends however that other evidence, being the fact that the gates were locked, should lead to the conclusion that Mr Pickwell had not crossed the boundary. I cannot adopt the logic of that submission. There is absolutely no evidence as to where these gates were situated nor what gates were actually being referred to. I do not even know whether these gates were on or near the driveway or if they were, those gates could be anywhere on the driveway, I simply do not know. The only specific evidence on this point is that Mr Pickwell ...."pulled up in the driveway...". 15. Mr Joseph S.C. submitted that, based upon that evidence, the only direct evidence as to where Mr Pickwell pulled up, the Court would conclude that the applicant had crossed the necessary boundary to his property. Mr Joseph S.C. then supplemented that short and relevant submission with the following; I would submit you would infer not the area outside the boundary fence when one is referring to in the driveway. The fact that there are gates unless my friend identifies where these gates are which he never intended to do I would submit you would be satisfied that in the driveway is an - together with the evidence of having arrived home and getting off a bike that might well be within the boundaries of the home but it does not - in our submission it does not matter because 10(4) is not intended to exclude a case even of the type my friend says occurs here namely parks the car out in the street let us assume he goes inside, let us assume he does not go inside, does it really matter. He gets on the bike in the street and gets injured. Well my friend says he is not on a journey from his place of abode because he does not commence it at the boundary of his home. With respect it is just fanciful type of interpretation of 10(4). The 10(4) and 10(3) are different purposes, 10(3) is to get you to characterise the journey, 10(4) is simply to delete injuries for the purpose of the section that occur within the boundary of your home not to change the character of a journey that might start in the street and end up at the place of employment. 16. This broader submission requires some consideration of the meaning and intention of section 10, particularly subsections 3 and 4. In Calvert v Soden 10 NSWCCR 139, Johns J contemplated such meaning and intentions, particularly insofaras they related to the terms "place of abode" and "boundary", even though His Honour's reasons were focussed upon a comparative applicability of those terms to home units and houses. Despite the fact that his Honour was concentrating on that exercise, his reasons, nonetheless, are extremely helpful to the understanding of what is meant by those terms relevantly in the context of the "journey" provisions in general. Those reasons are as follows; The question of where the line was to be drawn between the place of abode and the journey has been the subject of litigation from the time of the earliest journey provisions. In Thornley v. Sydney Waterfront Watchmens's Association [1942] 16 WCR (NSW) 57 Moffitt J held that the "place of abode" was to be construed in the popular sense and while doing so it was all important to keep in mind the nature of the remedy proposed by the Act itself (see Wentworth Securities Ltd v. Jones [1980] AC 74 at 105-106 per Lord Diplock and Clarke v. Bailey (1993) 30 NSWLR 556 at 567). The applicant in that case lived in a block of units and was injured whilst he was inside the block although outside the particular unit where he resided. Moffitt J held that the worker was not injured on a journey between his place of abode and place of employment. What was significant in that judgment were the rights of the occupier which were inseparable from the conception of the complete dwelling place; for example the right to use the common property and the common facilities on the property. The applicant's flat stood with other flats with a common outer wall. These were held to be inseparable from the conception of a complete dwelling place and while he was in the exercise of any of these rights and still within the building, that is in the act of using the common entrance door, his Honour thought that he was still within his place of abode and could not then be said to be on a journey from his place of abode to his place of employment. Thornley's case was cited with approval by Street CJ in Bowden v. Murdoch's Ltd [1951] 25 WCR (NSW) 1. The circumstances were not unlike Thornley's case and the Court followed the decision in Thornley. Street CJ stated at 5:

"... In the present case I think it is clear that the Legislature had in mind the necessity of protecting a worker when he was on his journey, that is to say, when he was a traveller or wayfarer. In the most usual circumstances his journey, for this purpose, would commence when he first emerged into a place or a way used by members of the community at large as a thoroughfare, whether as of right or not, for the purpose of moving from place to place; but I am not suggesting that this definition is all-inclusive and that it would be sufficient for the determination of cases which might arise on other and different facts. But it is obvious that all the courts that have been called upon to consider the meaning and effect of the language used in section 7(1)(b) and (c) have always had in mind this general concept that a man does not become a traveller till he emerges from the premises which are his place of abode."

The Court adopted the reasoning of Perdriau J in Fleury v. The Select Cake Service [1950] 24 WCR (NSW) 15 that the applicant's journey commenced when he left the home building or it's precincts and in that regard was in agreement with the judgment of Moffitt J in Thornley . A further legislative change came in 1964. Section 7(1)(g) deemed a worker's journey to have commenced, in the event that he lived in a unit, at the front door of the particular unit where he lived or, in the event that he lived in a house, at the front door of the house. The Workers Compensation Act 1987, as it was originally enacted contained similar provisions to section 7(1)(g) of the 1926 Act. Section 10(4) of the 1987 Act as it was originally enacted provided that a worker who resided in a flat or home unit commenced his journey at the exit of that flat or home unit. In every other case where the worker's place of abode was within a building or structure a journey from a worker's place of abode commenced at the exit of that building or structure. Thus there was a distinction between workers who resided in home units and those who resided in houses. A journey from a home unit commenced at the front door of the unit whilst on the other hand a worker who resided at a house commenced his journey when he left the front door of the building itself. Had the provisions of section 10(4) remained unchanged the applicant obviously would have been entitled to an award of compensation. However the amendment to section 10(4) by the Workers Compensation (Amendment) Act 1989 stated that the place of abode is to include the boundary upon which the house or block of units is situated. If the mere words "place of abode" as they stood in the original section 7(1) commenced at the boundary upon which the premises were situated, the 1989 amendment to section 10(4) has legislated those decisions referred to above into the present Act. The second reading speech in Hansard on 21 November 1989, in so far as it can be used as assistance in determining the legislative intent, makes it clear at 12,928 that the provisions in accordance with the 1964 amendment were inappropriate as employers were not to be held liable for accidents that happened in places such as the worker's own front porch, garage or driveway. It was said that accidents of that nature were not related to the hazards of the journey. 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. McGrath CJ in Anderson v. Thiess Contractors Pty Ltd, Compensation Court, No. 13475/91, 25 March 1993, unreported, concluded that there was no distinction to be made between the boundary of a block of home units and the boundary upon which a home is situated when consideration was to be given to the commencement or ending of a journey to or from a place of employment. As a result the artificiality that is to be observed in Williams v Ducon Condenser Ltd [1949] 23 WCR (NSW) 122 is again to be expected or assumed. In that case the applicant used her bicycle in journeying to and from work. On the day of injury she was returning home from work. The applicant lost control of her bicycle when it passed over an uneven surface outside the gate of her home and she received injuries by falling onto the driveway inside the gate. The Commission found that the injuries were received at the applicant's place of abode and not between her place of employment and place of abode and accordingly compensation was refused. 17. I am grateful to Johns J for such a helpful analysis of the authorities and legislative history and I adopt His Honour's reasons. With that in mind, I reiterate that it was more likely than not Mr Pickwell crossed into his place of abode when he ... "pulled up in the driveway...". It is more likely than not that Mr Pickwell goes onto the property upon which is situated his place of abode when he goes into the driveway. There is nothing in evidence to suggest anything other than this was a driveway 18. "Driveway" is defined in the Shorter Oxford English Dictionary as … "a private road, leading to a house, a drive…". The concept of "private" is interesting and conveys the impression that it is within an area that is private property or under private ownership or control. Either view would tend, in my view, to support proposition that it was within the area contemplated by the words "place of abode". Relevant to those observations, it is interesting to reiterate what was said by Johns J in Calvert at page 143; "The second Reading Speech in Hansard on 21 November 1989, in so far as it can be used as assistance in determining the legislative intent, makes it clear at 12,928 that the provisions in accordance with the 1964 amendment were inappropriate as employers were not to be held liable for accidents that happened in places such as the worker's own front porch, garage or driveway. It was said that accidents of that nature were not related to the hazards of the journey." 19. For those introducing the legislation it would seem that an area such as a driveway was considered to be within the boundaries of the place of abode. Whilst the facts of each case will define such boundaries, there is nothing to indicate in this present matter that the driveway at Mr Pickwell's place of abode is anything other than a normal driveway which, on the balance of probabilities, would be within the boundary of his place of abode. It would also seem logical to conclude that for those reasons, that had the injuries been sustained while he was in the driveway, it is unlikely that Mr Pickwell would have been entitled to benefits of the journey provisions and it would have been interesting to see what the respondent's submissions as to the status of the driveway would have been had that been the case. 20. Alternatively, it may also have been possible that where Mr Pickwell pulled up in the driveway, may well have been on the actual boundary of the place of abode and as subsection (4) only requires the journey to commence at the boundary, that interpretation of the facts would also entitle Mr Pickwell to the benefit of the journey provisions. 13. It is clear that the Commissioner accepted that the worker "pulled up in the driveway". There was clear evidence to support such a finding. But what does "driveway" mean? Streets in this country are usually divided into both carriageways ("the road") and footways ("the path"). There is often also a verge or nature strip between the road and the path and/or between the path and the boundary of adjoining properties. Idiomatically "driveway" is used to indicate that piece of land that leads from the carriageway to the garage or carport or parking area on the property adjoining the street. "Driveway" includes that part of the access to the property which is still on the public street, but not part of the carriageway. "Pulling up in the driveway" does not mean that one stops a vehicle within the boundary of one's own property. It can mean pulling up on that part of the driveway between the carriageway and the boundary. The householder's complaint that "there is a car parked across my driveway" does not mean that another has parked his vehicle on the householder's property but rather that the other has parked his vehicle on the carriageway preventing ingress to or egress from the driveway where it adjoins the carriageway ie still on the public street. 14. A number of possibilities arise from the finding that the worker "pulled up in his driveway". He may have been on that part of the driveway still on public land, he may have been straddling the boundary or he may have crossed it wholly so that he was within the boundary of the land on which his house stood. That the Commissioner was alive to there being a number of possibilities is clear from par [20] of his reasons, where he states that if the worker were "on the actual boundary" that would be sufficient for the worker to succeed. 15. In Holloway v McFeeters (1956) 94 CLR 470, Williams, Webb and Fullagar JJ said at 480-81: Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause "you need only circumstances raising a more probable inference in favour of what is alleged . . . where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687 . . . All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood". These passages are extracted from the unanimous judgment of this Court (Dixon J., as he then was, Williams, Webb, Fullagar and Kitto JJ.), in Bradshaw v. McEwans Pty. Ltd. 16. This raises the question in this case as to the which of the three possibilities I have given has "some greater degree of likelihood". 17. More recently, the Court of Appeal has discussed the issue of what evidence is sufficient to support a finding of fact. That decision is in Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 697 per Hodgson CJ in Eq at par [53] - [64]. Sheller and Beazley JJA agreed with his Honour in this regard. He said: 53 Mr Shore submitted that the question whether there was any evidence upon which the finding could be made was a question of law, and he relied on McPhee v Bennett Ltd (1934) 52 WN (NSW) 8 at 9. 54 Mr Hislop relied on Azzopardi, and on the following statement by Meagher JA in Coal & Allied at 225: But it must be emphasised that the question is a purely factual question, and when his Honour has answered in the affirmative, his Honour was making a finding of fact. That being so, this Court has no jurisdiction to embark on an analysis of its correctnes s or otherwise, and hence any challenge to it must fail in limine since the Court can only entertain appeals from the Commission on questions of law. 55 Mr Hislop submitted that it was very difficult to establish that there was no evidence: it did not matter that the evidence was scanty or implausible, or even that the decision was perverse: if there was any evidence at all on the point, there was no error of law. 56 In my opinion, Mr Hislop's submissions to some extent reflect a misunderstanding of what was decided in Azzopardi. In the main judgment in that case, that of Glass JA, a clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof. In the former situation, the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence, which if fully accepted could properly base the finding of fact. The distinction is made clear in the following passage from the judgment of Glass JA at 156: To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. 57 That very sharp distinction has not been stated so clearly in all the cases which followed Azzopardi. 58 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, the trial Judge found incapacity in favour of the worker up to a specified date, and thereafter found the worker "fit for all work". An appeal was brought on two grounds: firstly, that there was no evidence on which his Honour could have found as he did; and secondly, that his Honour failed to give any reasons for his conclusion. 59 In relation to the first ground of appeal, Kirby P at 253 - 4 referred to Azzopardi, and the view of the majority that "an error of fact finding would not be elevated to an error of law, if based on evidence open to the trial Judge, even if an appeal court were of the view that the decision on the facts was illogical, perverse or completely unreasonable". At 256, Kirby P rejected the argument that there was no evidence at all to sustain the trial Judge's finding. 60 It is to be noted that Kirby P did not speak in terms of evidence sufficient to base a finding, but whether there was no evidence at all to sustain the finding. If his Honour thereby meant to say that, in circumstances where the onus of proof lay on the respondent, an appellant could not make out an error of law by showing that, although there was evidence relevant to the question, that evidence could not even if fully accepted properly support the finding, it would seem that what he said may be inconsistent with what Glass JA said in Azzopardi. 61 In the judgment of Mahoney JA in Soulemezis, at 264, his Honour pointed out that the onus was on the worker to prove incapacity at any relevant time. Accordingly, in my opinion, the error that had to be shown by the appellant worker in that case was an error in failing to be satisfied of a matter on which the appellant bore the onus of proof. Approached in that way, no question of sufficiency of evidence could arise, for the reasons discussed by Glass JA in Azzopardi; and so the statements of Kirby P were obiter in their application to cases where the appeal is against a finding in favour of the party bearing the onus of proof. 62 In Mafulu Pty Ltd v Mather, NSWCA, No. 594/87, 13 December 1988, unreported, a finding had been made that a company director was a worker. An appeal was brought on the basis that there was no evidence to sustain that finding. The Court of Appeal held that there was such evidence. Kirby P posed the question as being whether or not "there was no evidence at all to support a finding of fact made". Samuels JA held that there was "some evidence upon which the finding could rest". 63 Again, if the question posed by Kirby P is interpreted as asking whether or not there was any evidence at all relevant to the finding, then that is not consistent with Azzopardi. In my opinion, Kirby P's question, and the statement of Samuels JA, should be properly interpreted as indicating that the correct question, in relation to a matter where a finding has been made in favour of a person bearing the onus, is whether or not the finding could properly be made on the evidence, if fully accepted. It must be recalled that Azzopardi itself was a case where the finding challenged was a finding against the person bearing the onus. 64 Similarly, the passage quoted earlier from the judgment of Meagher JA in Coal & Allied, at 225, could be interpreted as suggesting that no question of sufficiency of evidence, as that term was used by Glass JA in Azzopardi, arises even where the finding appealed against is a finding in favour of a party bearing the onus of proof. For reasons I have given, I do not think that passage should be interpreted in that way. 18. The test here proposed is whether the evidence , if fully accepted, could properly base the finding of fact. The finding of fact here in question is not whether the worker had "pulled up in his driveway" but whether he had crossed the boundary of his own property. 19. I return to the Commissioner's reasons. In par [12] he sets out a submission by the employer, the essence of which is that the worker had failed to discharge the onus which lay upon him. At the commencement of par [13], he states that he is unable to accept the submission. He then says "It does not follow to conclude that Mr Pickwell had not crossed the boundary upon which his home was situated when he pulled up in the driveway". With the utmost respect, that appears to me to be inverting the onus of proof. The worker had the legal and evidentiary onus of establishing that his journey commenced at the boundary of the land on which his house was situated. That onus must be discharged by adducing appropriate evidence. The statement that the worker pulled up in the driveway is ambiguous: a number of possibilities arise. What makes it more likely that the worker had crossed the boundary of his land? Nothing this far quoted by the Commissioner. Yet it is at this stage that the Commissioner makes his finding that the worker "was on the property upon which his place of abode was situated and had crossed the boundary of his property in reaching that point in "the driveway". 20. In par [14] of his reasons the Commissioner rejects the contention of the employer that the fact that the gates were locked should lead to a positive conclusion that the worker had not crossed the boundary. Correctly, he pointed out that there was no evidence where the gates were. He again reiterates that the only specific evidence is that the worker pulled up in the driveway. On an evidentiary basis, the fact that there were locked gates, when the worker failed to adduce evidence of their situs in relation to the boundary of the land, speaks against a finding in the worker's favour. Even if the Commissioner did not take that view, it is not evidence to support a positive finding in favour of the worker. The Commissioner then quoted in par [15] the submission of Mr Joseph SC, for the worker, on that issue, which submission savours of an inversion of the onus of proof: "unless my friend identifies where these gates are." These considerations do not turn "driveway" into that part of the driveway within the boundaries of the land on which the worker's house was situated. 21. The Commissioner in par [16] quotes extensively from the decision of Johns J in Calvert v Soden (1994) 10 NSWCCR 139. In that case his Honour was not addressing the factual issue which the Commissioner had to address. In par [17] the Commissioner again makes the finding that the worker had gone "onto the property upon which is situated his place of abode when he goes into the driveway". He then said, quite correctly, that "there is nothing in evidence to suggest anything other than this was a driveway." But that statement again begs the question of what "driveway" means. 22. At the commencement of par [18] the Commissioner said: "Driveway" is defined in the Shorter Oxford English Dictionary as …"a private road leading to a house, a drive…". The concept of "private" is interesting and conveys the impression that it is within an area that is private property or under private ownership or control. Either view would tend, in my view, to support proposition [sic] that it was within the area contemplated by the words "place of abode". The Commissioner then quoted a passage from Calvert v Soden (1994) 10 NSWCCR 139 at 143B and then continued in par [19] which I have quoted above. 23. The reasoning of the Commissioner is paragraphs 18 and 19 appears to me to be reducible to a syllogism. That syllogism is: (a) A "Driveway" is on private land; (b) the worker pulled up in the driveway ergo the worker pulled up on private land ie within the boundaries of his place of abode. 24. The problem with this syllogism is that the premiss is false. The Commissioner misdirected himself in the opening sentence of par [18]. I have in par [13] above explained the idiomatic use of "driveway". "Driveway" is not defined as the Commissioner has stated. The Shorter Oxford English Dictionary 3ed with revised Addenda and Corrections (1978) gives the following meanings: "A way along which something is driven; a carriage drive." The Oxford English Dictionary 2ed 1989 provides the following primary meanings: "A way along which something is driven. (a) A course along which game are driven in hunting. (b) A road or way along which animals or vehicles are driven; a carriage drive. Also a private carriageway for a motor vehicle alongside, in front of, or leading to a house, garage, or other building; a drive." 25. The New Shorter Oxford English Dictionary 1993 provides the following meanings: "1. A passageway by which hay, grain etc, can be taken into a barn. 2. A course along which game is driven in hunting. 3. A road along which animals or vehicles are driven; spec a private road leading to a house, a drive. 4. A scenic highway. Canada This appears to be the work consulted by the Commissioner. "A private road leading to a house, a drive" is only one meaning of driveway, and a specific meaning as well. 26. The Macquarie Dictionary 3ed 1997 provides the following meanings: "1. a passageway along which vehicles may be driven especially outside a private house. 2. The area in front of a service station adjacent to the petrol pumps." 27. The use of the word "driveway" by the worker cannot be construed per se as a statement that he was within the boundaries of his place of abode. Further evidence is required to explain on which part of the driveway the worker was when he pulled up. There is no such evidence. 28. The Commissioner's reference to what fell from Johns J in Calvert does not assist. The "worker's own front porch, garage or driveway" means "the worker's own front porch, the worker's own garage or the worker's own driveway." It is not a reference by his Honour to that part of a driveway on public land. Furthermore, his Honour was only paraphrasing the Second Reading Speech for the Bill which became the Workers Compensation (Amendment) Act 1989. The relevant part of that speech should be considered. It makes the position clear that the "worker's own … driveway" was meant to cover that part of the driveway within the boundaries of the workers own land. It was not defining "driveway" in any particular sense. The Minister, Hon Mr J Fahey said at Hansard, 21 November 1989 p 12928.3: The bill will provide also that coverage on journeys between home and work starts and finishes at the boundary of the home property. Under the existing provisions, the cover exists up to the entrance of the dwelling - or, in the case of home units, the door of the unit. It is clearly not appropriate that employers be held liable for accidents that happen in places such as the worker's own front porch, garage or driveway. Accidents that occur in such areas are not related to the hazards of the journey. 29. The matters considered by the Commissioner do not in my view enable an inference to be drawn that when the worker said that "he pulled up in the driveway", he had crossed over the boundary of the land on which his place of abode was situated. Nothing cited by the Commissioner suggests that there was "some greater degree of likelihood" that he had done so. The finding of fact that the worker pulled up in his driveway (which was amply supported by evidence) could not properly base the finding of fact that the worker had crossed over the boundary of his own property. 30. Such evidence could easily have been led. The worker could have described his property and indicated that he passed the front fence of the property (if there were such a fence). He could have drawn a sketch plan, he could have tendered a photograph and have explained where he pulled up by reference to it. No attempt was made to do any such thing. No attempt was made to adduce any such evidence before me: cf Compensation Court Act 1984 s 43A(4). 31. During the course of addresses it appeared to me that an inference might be drawn that the worker would have stopped where he would normally park his vehicle on the property. However, on reflection it would not be proper for me to draw such inference because I am not the tribunal of fact. Furthermore, in light of the evidence of the "locked gates" and in light of the absence of evidence from the worker as to where he normally parked his vehicle, such inference could not be drawn. 32. I have also considered whether the worker's evidence in answer to a question from the Commissioner might give some greater degree of likelihood to the possibility that the worker crossed over the boundary of the property. The question and answer are: "Q. You actually arrived home? A. Yes, pulled up." This may be taken as an affirmation that the worker "actually arrived home." However, that statement is itself ambiguous. Of course, there could have been no ambiguity in the Commissioner's mind because he knew what he meant when he asked the question. However what is important is what the worker understood by the question. The concept of "arriving home" is a relative one. How often has one heard a weary international traveller say on arriving at Sydney Airport "it's good to be home", when his or her place of abode could be anywhere in the metropolis. Idiomatically "arriving home" can be used for arriving in one's city, town, suburb or street. One can arrive "home" to find one's driveway blocked by garbage and recycling bins left in it by Council workmen. One can arrive "home", stop the vehicle, alight, open the front gates, reenter the vehicle then drive across the boundary between the public street and one's private property. "Home" is sometimes used synonomously with "house". It is clear in the current matter that the worker did not enter his house. One ambiguous statement coupled with another ambiguous statement do not make it more likely that the worker had crossed the boundary of his property. 33. I must conclude that the evidence was incapable of supporting the finding that the worker had crossed over onto his property on his return from Wedderburn. It follows that the worker has failed to establish that "conduct said to constitute a journey", to use the formulation of Heydon JA in Athval Management Pty Ltd v Doherty (2000) 20 NSWCCR 687, commenced at the boundary of his place of abode at the time alleged. There was no alternative allegation made that the journey commenced when the worker left for Wedderburn and that although there was a deviation or interruption in the journey, the risk of injury was not increased thereby. The submission as to the construction of section 10(4) 34. Mr Joseph SC made a submission, in the alternative, to the Commissioner about the construction of s 10(4). It is summarised at Transcript 26 August 1998 p 12.4 thus: Your Honour what 10(4) is intending to do is to simply say that if you have an injury on a journey it has to be outside the boundary of the land which your place of abode is, that is it does not change, it does not change the character of the journey which you have to determine as to where physically you started the journey. I mean it simply seeks to delete from the journey provisions any injury that occurs at your place of abode. The Commissioner appears to have been enamoured of this submission. He said:

21. It will be recalled that Mr Joseph S.C. suggested that sub sections (3) and (4) of Section 10 were essentially establishing the nature and character of the journey and it was his submission that if the journey could be characterised as having the essential character of being connected with an employment purpose and the injuries occurred between the boundary of the place of abode and the place of employment on such a journey, then that would be enough. In that regard Mr Joseph S.C. suggests that subsection (4) indicates what injuries are not covered, those being injuries which do not occur on the journey but rather those which have occurred within the place of abode or at the place of employment. Support for that proposition may be found, I would suggest, in the notion of journeyer or wayfarer as contemplated by the words of Street C.J. in Bowden's case which was referred to by Johns J. in Calvert and which has been set out above. 22. Should that submission be correct, it would seem that the question of where Mr Pickwell pulled up in the driveway would indeed not even be an issue and the applicant would not be disentitled due to any view that the respondent may suggest as to the significance of the driveway issue. There is, in my view, merit in Mr Joseph's submission and therefore on each of the possible arguments relating to the driveway issue, all of which concern the question of the commencement point of Mr Pickwell's journey, the applicant is not disqualified from reliance upon the journey provisions. 35. The submission was again made to me. I am unable to accept it. Section 10(1) of the Act deems an injury received on certain journeys as being an injury arising out of or in the course of employment, and makes compensation payable accordingly: see per Heydon JA in Athval Management Pty Ltd v Doherty (2000) 20 NSWCCR 687 at [5]. Subsection (3) enumerates the journeys concerned. Relevantly paragraph (3)(a) is "the daily or other periodic journeys between the worker's place of abode and place of employment." Subsection (4) provides: 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. 36. It is important to bear in mind that only certain journeys are compensable. A journey to and from the worker's place of employment is not compensable. The only relevant compensable journey is that between the worker's place of abode and his place of employment. The journey to the place of employment commences at the boundary of his place of abode. The Act fixes the point of commencement of the journey. The argument proffered by Mr Joseph SC, unsupported by authority, leads to the conclusion that section 10(3)(a) should mean "the daily or periodic journeys to or from the workers place of employment" and that section 10(4) should be construed as "For the purposes of this Act injury received within the boundaries of the workers place of abode is not an injury received on a journey within section 10(3)(a)." 37. However the Act does not say either of those things, nor does it mean either of them. The structure of the Act is clear. It is the structure implicit in the decision of Athval Management Pty Ltd v Doherty (2000) 20 NSWCCR 687. If Mr Joseph's construction were correct, then that case would never have needed judicial consideration. As I suggested to Mr Joseph SC in argument, the logic of his proposition would allow a worker to commence his journey at any place, such that he could avoid questions of interruption and of deviation. In so far as the Commissioner accepted this submission, he fell into error. Conclusion of the first issue 38. It follows from the above considerations that this appeal must be allowed. However, in deference to the arguments of Counsel, and lest the matter go further, I shall briefly deal with the second issue and must then deal with the further conduct of this matter. Second issue: Evidence that this was a periodic journey 39. Prior to 21 March 1997 the worker had done "on site jobs". These were jobs done off the employer's premises. Sometimes the worker was required to load up a truck on the day before such work, with equipment that it was anticipated would be used on such work. Sometimes that was done during normal working hours, at other times the worker would do it after hours and be paid overtime for it. The worker agreed that such work was a small percentage of his employer's business. The worker had not previously been called out to such work on a rostered day off, or "flexi day", but had been called out during his Christmas holidays. As is clear from paragraphs [4] and [5] above, the worker had been alerted that he might be required for such work on the following Saturday 22 March. It was in order to find out if he were required for such work that the worker was travelling to his place of employment when he was injured. The worker had another reason for travelling to his place of employment: he might be required to load the truck so that work could start promptly on the following day. The worker also gave evidence that it was his intention in future to use the route which he followed on 21 March for his regular journey to and from work. All of this was accepted by the Commissioner in paragraphs [40] - [47] of his reasons, which I shall not quote. He accepted that the worker was on a periodic journey from his place of abode to his place of employment, with the intention of working there, if so required. 40. The Act requires a "daily or other periodic journey" between two termini. The appeal is allowed on the basis that the evidence was not sufficient to support a finding that it commenced at the required statutory terminus. I proceed on the basis that it did start at the place of abode. The Commissioner correctly identified that he was required to find a periodic journey other than a daily one. The phrase "daily or other periodic journey" can be paraphrased as "a journey each day or at other periods." Some workers may have two daily journeys each way: see Tooth and Co Ltd v Injac (1994) 10 NSWCCR 437. A worker who is casually employed one day per week would have a weekly journey to work. Such would still be a periodic journey. A worker injured on his first journey to work, on his first day of work, would still be entitled to compensation under section 10. It was the first of what were anticipated many journeys to work. A worker who was "on call" would still be entitled to compensation if injured on a journey to work when called up to do so. The "period" in such a case would be "whenever called upon to do so". In Hall v Estate of J R Hughes (1947) 48 WCR 97, Lamond J said at 98: The other question is whether this particular journey constituted a "daily or periodic" journey. It was submitted for respondent that there must be a periodicity past or future attached to the journey from the place of employment provided by the employer from whom compensation is claimed. It seems to me that the expression "daily or periodic journey" is one simple in application to the case of a worker who performs a regular orbit day by day between his home and his work, but doubtful as to its application generally. For instance, in the case of a man who obtained employment for one day only and was injured on his way to work, so that he never even performed the homeward journey, it seems to me that it could not be said that he had not been injured on his daily journey notwithstanding the absence of repetition of the journey. In my view, the phrase is one directed not to the existence of a contract of employment between the worker injured and his employer, under which the worker is to perform a series of journeys but rather to the character or intention of the journey. So if the journey is one undertaken by the worker for the purposes of going to or from his employment, it becomes a journey within the meaning of the phrase "daily or periodic," notwithstanding that he personally may not perform the journey more than once. In other words, it is a journey of the character which workers generally, either daily or if not daily, periodically, undertake for the purpose of going to or from their employment. 41. In the present case, if Mr Tierney had asked the worker to come into work to load the truck on the evening of 21 March 1997, there would be no doubt that this was a periodic journey to the place of employment. 42. The question really is whether the worker's making such a journey to see whether he would be required to work can satisfy the statutory requirement. In this regard, the decision of Whiting v Brambles Industries Ltd [1976] WCR 213 is instructive, and authoritative. In that case the worker ("the deceased") drove a forklift truck at a brewery under arrangements made between his employer and the brewer. The brewery workers were on strike. The deceased and other workers attended at the brewery premises, later than the usual starting time. They intended to start work, if the strikers returned to work. On that fatal morning, the strikers did not return to work. The forklift drivers could return home (forfeiting a day's wages) or go to the employer's premises, which was expected of them. However there was usually no work available for the forklift drivers at their employer's premises. If they attended there they would be paid for the day, and if it were a payday they could receive their wages. On the fatal day, the employer arranged to pay its workers outside the brewery premises, they did not need to go to the employer's premises. The deceased collected his wages and then started his journey home. On that journey he was fatally injured. The dependents of the deceased were held to be entitled to compensation. Westcott J awarded compensation but an appeal to the Court of Appeal was successful (Samuels and Mahoney JJA, Glass JA dissenting) but the widow's appeal to the High Court was successful (Barwick CJ, Gibbs, Mason, Jacobs and Murphy JJ). In the Court of Appeal Glass JA said at 220: It is not sufficient to attract the provisions of s 7 of the Act that injury should occur while the worker is moving between two points which upon historical grounds, qualify for description as his "place of employment" and his "place of abode": Jones v Rex Aluminium Co Pty Ltd [1957] SR (NSW) 631 at 633; Kerr v New South Wales Club [1971] WCR 13 at 18. The purpose of each journey must have some regard to the relationship of employment between the parties: Hague v Monier Pipe Co Pty Ltd [1967] WCR 81 at 84. The purposes for which a journey is undertaken may of course, be multiple and subject to classification as dominant or subordinate. But what those purposes are, how they are ranked and whether they reflect the employment relationship are questions of fact and degree. Accordingly, a finding that the requisite purpose was present or absent will raise no question of law unless evidence to support it is wholly lacking. 43. The following remarks were part of those given in the unanimous joint judgment of the High Court at 234-5: The words of s. 7 (1) (c) (i) are somewhat compressed. Although they refer to a journey "between the worker's place of abode and place of employment" they plainly include a journey which commences at the place of employment and ends at the place of abode. But it is not necessary, in order that a journey should answer the statutory description, that the workman must have in fact departed from his place of employment and ended his journey at his place of abode. The section does not so provide. The word "between" imports a relationship between the journey and the two places mentioned. The journey must have been along a route between the two places, and the worker must be travelling for some reason connected with his employment. Speaking generally it might be enough to say that he must be "travelling between his place of residence and his place of employment for the purpose of commencing work or of returning to his home after his work has finished": Landers v. Dawson (1964) Error! Reference source not found. , at p 652 . However, other purposes of travel connected with his work can be suggested, and it would be sufficient if the reason for the journey homewards was that there was no work available at the place of employment. However, a journey "between" two places need not necessarily begin at one of those places and end at the other. It cannot be doubted that if a worker is killed or injured on his way from his place of employment to his place of abode, and for that reason does not reach his destination, the journey is none the less one "between (his) place of abode and place of employment". It was accordingly not suggested in the present case that the fact that the deceased did not arrive at his home prevented the journey from answering the description in s. 7 (1) (c) (i). Similarly, if a worker is travelling to his place of abode, the journey may in some circumstances be one "between the worker's place of abode and place of employment" notwithstanding that he has not departed from the place where he is employed. In particular, a workman who sets out from home with the intention of going to work, but is prevented by circumstances beyond his control (such as a flood, a fire or the activities of a picket line) from reaching his place of employment and who then turns back towards his home, may properly be said to be journeying between his "place of abode and place of employment" while he is on his homeward journey. (at p468) 5. In the present case it was right to conclude that the deceased left home on the morning of 14th June 1973 with the intention of going to his place of employment and of working there if work was available. He in fact journeyed as far as the gates leading to his place of employment. He made the journey in accordance with the normal practice which his employer expected him to follow. He did not reach the actual place of his employment because the gates were shut. When he found that no work was available, he began to return to his home. The journey that he then commenced can rightly be regarded as one between his place of employment and his place of abode. It seems quite immaterial that he was expected, in theory at least, to go instead to other premises occupied by his employer. The fact that he might have made another journey, which would itself no doubt have been in the course of his employment, did not alter the character of the journey which he actually made. (at p469) 6. The journey was properly treated as a "daily or other periodic" journey. The deceased made a journey of that kind every working day. The fact that he normally made it at a different time of the day is not material. A journey may be periodic notwithstanding that it takes place at a different time each day, as in the case of a man who works variable hours. A man who leaves work early to go home because of illness can be said to be making a periodic journey notwithstanding that he normally leaves his employment at a later hour. A man who leaves home later than normal to go to work does not, by reason only of his unpunctuality, disentitle himself or his dependants to compensation under s. 7 (1) (b). (at p469) 44. It follows from the reasoning, that travelling to the place of employment to carry out work if available is sufficient. The only material factual difference between the present matter and Whiting's case is that in that case the employer expected its workers to attend at the brewery to see if work were available. In the present matter Mr King SC, before me, properly made the following concession: Indeed, it was within the expectation of the parties that that contact could be made either by telephone or by the applicant's turning up in person. And it appeared, your Honour, that possibly also the fact that if there had been a job on the next day, and if the truck had been loaded that afternoon, the applicant would have been paid for it - that appeared to carry some weight. 45. Given the worker's intentions, of travelling to find out if work were available on the following day and of working on that day, if required and given the expectation of both parties that the worker contact his employer either by telephone or by turning up in person, it appears to me to have been open to the Commissioner to find on the evidence that this was "a periodic journey" to the worker's place of employment. Further disposition 46. Further issues in this matter are whether the worker's injury arose out of or in the course of his employment and, if so, whether the worker's employment was a substantial contributing factor to the injury. The Commissioner expressed some tentative views on these matters but made no final determination thereon. Reluctantly, I have concluded that I must remit those issues to the Commissioner to be determined according to law. There is one matter which does require me to remit the matter. At the time of the Commissioner's decision and of the hearing of the appeal before me, the decision of the Court of Appeal in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 240; 20 NSWCCR 70, had not been published. That decision, of course, concerns the proper interpretation of section 9A and the Commissioner must apply the principles in that decision to the present matter. 47. My reluctance to remit the matter stems from my inability to see how the worker's injury arose out of or in the course of his employment. The case law as to whether journeys to and from work are compensable under the definition in section 4 suggests that only a narrow category of such journeys is compensable: vide Maurino v Amberlor Pty Ltd (1996) 14 NSWCCR 16; Smith v Brown (1998) 16 NSWCCR 493 and the cases referred to in those authorities. As a general proposition an injury on a journey to work, even if an employer requires, expects or demands that an employee be at work, does not arise out of or in the course of employment. This is well settled law: Benson v Lancashire and Yorkshire Railway Co [1904] 1 KB 242 per Collins MR; Nolan v Porter and Sons (1910) 2 BWCC 106 (Eng, CA); Walters v Staveley Coal and Iron Co Ltd (1910) 4 BWCC 303 (HL). In the current case, there was no requirement that the worker attend at his employer's premises. The current case is less arguable than many that have failed. 48. With the utmost respect to the Commissioner and learned Counsel who argued the case before him, decisions such as Hooke v Rolfe (1986) 7 NSWLR 40; 2 NSWCCR 81; Glenbuddah Pty Ltd v Williams (1995) 12 NSWCCR 491; and Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; 8 NSWCCR 242 have little to do with the current matter. The cases I have just cited are those referred to by the Commissioner in his reasons. During addresses before the Commissioner , many of the "camping cases" were cited but they, like Hatzimanolis, have nothing to do with this matter. Dicta must be considered in the context of the facts being discussed. Dicta must not be taken out of context. 49. On the question of "substantial contributing factor" the Commissioner said: "… there would possibly be some strength in a submission which suggested that if someone was going to his place of employment harbouring a reasonable expectation that he may have to load the truck for the "on site" job, then there could be a sufficient, indeed substantial connection with the employment." 50. As a general proposition a worker travelling to work knowing that his employer had work for him and that his employer expected him to attend does not establish either a temporal or causal relationship between the journey and the employment. That is the point of the early case law. In those cases where journeying was held to be compensable, the relationship accepted by the Courts was temporal not causal. It is clear from the decision in Mercer that some form of causal relationship is required to satisfy the test under section 9A. It must also be recalled that the test requires a relationship not to the fact of being employed but to the actual work being performed by the worker: Mercer (2000) 20 NSWCCR 76 at [13]. It is hard to see such a relationship in the facts of this case. It should also be recalled that Parliament exempted the journey provisions in section 10 from the operation of section 9A no doubt because it would, as a general proposition, be impossible to establish any causal relationship between the work which a worker is required to do and an injury on a journey to and from work. 51. I have written the few foregoing paragraphs to indicate my reluctance to remit the matter but also to assist the Commissioner in his further deliberations which will, no doubt, be approached with dispassion and intellectual rigour. Orders 52. 1. Appeal allowed. 2. Award of 19 November 1999 in matter no 47868 of 1998 set aside. 3. Remit the matter to Hogg C to determine outstanding issues according to law. 4. Each party to pay its or his own costs of the appeal.

MMr L King SC with Mr C S Robertson instructed by Vardanega Roberts appeared for the claimant. Mr M Joseph SC with Mr R Goodridge instructed by Firths appeared for opponent.

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