KAZZI v MANNINGS TOWING PTY LTD [1989] NSWCA 117

KAZZI v MANNINGS TOWING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLY and CLARKE JJA 26 May 1989, 1 August 1989

[1989] NSWCA 117

Appeal from Compensation Court — Worker in tow truck business brings car to repair yard at night — Climbs over locked gate and onto roof for purpose held not to be purpose of his employment — Injured in fall through roof — Judge held injury not arising out of or in course of employment — Held: Judge did not err in law in so finding or in the principles applied. Meaning of "arising out of" and of "in the course of" employment — What may be "incidental to" employment — What constitutes an interruption to the course of employment. ORDERS (By majority) Appeal dismissed with costs.

Mahoney JA Mr Kazzi was a tow-truck driver employed by Mannings Towing Pty Ltd("Mannings"). In this proceeding Mr Kazzi has claimed compensation from Mannings under the Workers Compensation Act 1926 in respect of an injury suffered by him during the period of his employment.

During the evening of 22 September 1984, Mr Kazzi towed a vehicle to the premises of Trieste Smash Repairs ("Trieste"). He was to leave the vehicle in the yard of those premises. The gate to the premises was locked and he did not have the key. Mr Manning had the key and was coming to open the gate for him.

It was said that there was an intruder on the Trieste premises. Mr Kazzi scaled the nine foot fence to the premises and climbed onto the roof. While he was there, he fell through the roof and suffered the injury for which, in this proceeding, he claims compensation.

Before the Compensation Court there was widespread dispute as to what had happened. In February 1987, when the proceeding was originally before the Compensation Court, the learned trial judge made an award against Mr Kazzi. That award was set aside by this Court and the proceeding returned to the Compensation Court for reconsideration. On that reconsideration, the learned judge re-examined the facts. He made again, in detailed form, the findings of fact which he saw to be necessary and he set forth at length the reasons why he made them. Upon the basis of those findings, he again found against Mr Kazzi.

Mr Kazzi has appealed to this Court against his Honour's award. 1. The findings: In my opinion, this appeal turns upon the findings of fact made by the learned judge and the effect of them. It is therefore necessary to examine in detail what his Honour found and what, upon the basis of his findings, he did.

As Thave said, Mr Kazzi had towed a vehicle to the Trieste premises. This was done pursuant to the general arrangements which existed between Trieste and the tow-truck operators. Mr Kazzi's purpose was to put the vehicle in the yard of the premises overnight. It was, no doubt, subsequently to be repaired, by Trieste or otherwise.

What happened when Mr Kazzi arrived at the Trieste premises was in dispute at the trial. His Honour rejected Mr Kazzi's account and made findings contrary to what he had said. The judge's findings of fact in this regard are not in dispute before this Court. In the course of his judgment, he said:

2 UNREPORTED JUDGMENTS

"T believe that, on the evening of 22.9.84, Kazzi and Baker attended an accident scene at Annandale each driving one of Manning's trucks. Each hitched up a damaged vehicle. Baker acquiesced that the vehicles should be taken to Trieste. Kazzi so informed Manning's base operator by two-way radio. Manning heard that message to base. By radio Manning announced he would bring the keys to Trieste's yard and meet Kazzi and Baker there. En route the base operator, having been informed aliunde of a possible intruder at Trieste, broadcast notice of such possibility. That message was independently received by Manning, Kazzi and Baker. Kazzi proceeded directly to Trieste with Baker following in close attendance. They arrived proximate to the Trieste premises almost contemporaneously.

At no time did Kazzi go to Manning's office. At no time did Kazzi procure keys to the Trieste yard. Indeed, at no relevant time was it within Kazzi's contemplation that he would do either of the foregoing.

Kazzi and Baker alighted from their respective vehicles proximate to Trieste. Kazzi proceeded to the gate and, being unable to unlock it, scaled that nine foot structure and entered within Trieste's yard. He knew Manning was coming with the keys and he knew Baker was but minimally behind him when he arrived at the gate.

Apparently, having briefly surveyed the yard, Kazzi essayed to climb onto the roof of the work-shop or panel-shop. Baker had moved around the outside of the fence to an adjacent car-park from whence he suggested Kazzi desist from climbing about the roof. Kazzi did not. Kazzi fell through the roof landing it would seem on the windscreen/bonnet section of a vehicle. He sustained serious lacerations to his left upper limb.

Baker proceeded back to the gate, after Kazzi fell. He was about to scale the gate to render assistance to Kazzi when Manning arrived with the keys. Manning opened the gate and together they proceeded to the gate/door of the work-shop. Manning did not possess a key to the work-shop. Manning and Baker spent some little time calling to Kazzi and inducing him to unlock the work-shop gate from the inside. Kazzi had used his singlet/shirt to stem the bleeding from his arm and opened the work-shop gate. Manning conveyed Kazzi to Balmain Hospital where he was admitted and, the following day, from whence he was transferred to Prince of Wales Hospital.

As on the previous occasion, it is clear that Kazzi set out from the accident scene at Annandale with a vehicle in tow. He intended to deposit it in Trieste's yard. He had so informed the base operator. It was clearly within the course of Kazzi's employment to do so. Delivering such vehicles to such places was the very thing he was paid by Manning to do. "

Two issues have been in dispute before this Court: what were the circumstances in which Mr Kazzi was upon the roof of the premises; and whether, given those circumstances, the injury arose out of or in the course of his employment.

The judge's findings as to the circumstances in which Mr Kazzi was upon the roof are, in my opinion, central to the present appeal. There was, in the end, little or no dispute as to the events which took place. Mr Kazzi had been told that there might be an intruder on the Trieste premises. He scaled the fence, "briefly surveyed the yard", and then climbed onto the roof of the premises. And he fell through the roof. And, to put the matter in a neutral sense, he did what he did because of the possible presence of the intruder.

URJ KAZZI| v MANNINGS TOWING PTY LTD (Mahoney JA) 3

But there was disagreement as to why he did what he did, ie, as to his purposes or intention in doing it. Mr Kazzi said in evidence that he did what he did under the direction of Mr Manning. His Honour rejected Mr Kazzi's evidence. He was therefore left with no other direct evidence on the question. He therefore had to determine by inference why Mr Kazzi did what he did. His Honour might have inferred that he did it in order to ensure that, when the gates were opened and the vehicle placed in the yard, it was safe to leave it there. It was, it would appear, submitted that his Honour should so find. And his Honour was, I think, conscious that, if he so found, Mr Kazzi could and would have succeeded in his claim. But his Honour refused so to find.

His Honour found that Mr Kazzi did what he did "independently of his service to Manning and pursuant to his own relation with Trieste...". He considered at length the relationships which existed between Mr Manning, Mannings, Trieste and Mr Kazzi. He found that there was a business or personal relationship or both between Mr Manning and the owner of Trieste. He then said:

"Kazzi also had some relationship with Trieste. It went beyond merely delivering vehicles to a small repairer as one of Manning's tow-truck drivers. Kazzi asserts, and partly retracts, that he filled a number of functions in relation to Trieste. Initially he suggested, as a long-time spray-painter, he would help out Trieste in that regard but that ultimately becomes restricted to spray-painting his own vehicle, presumably on one occasion. He asserted he would help them out when needed. As first explained that seemed to encompass doing spray-painting, free towing and gathering spare parts. I have already indicated that I do not accept that rendering any of these services to Trieste was part of Kazzi's service to Manning. If he did it for Trieste he did it as a volunteer or for reward emanating from Trieste not as part of his duty to Manning as a tow-truck driver. There is no suggestion that Baker, or any other of Manning's drivers, performed similar services. I am of the view that Kazzi did render such services to Trieste. The whole subject matter arose inadvertently. Mr Kazzi was presented with a proposition that you had to get through Trieste's yard gate before you could get into the "factory". Kazzi was not sure, adding 'I never used to get involved inside the panel shop, only of a daytime...'. I take him to suggest that during the day the panel shop was in fact open. The whole subject matter was raised in relation to whether there were separate keys to the yard and work-shop. It was from that innocuous enquiry that these suggestions of things Kazzi did for Trieste tumbled out. It followed in such a non-sequential and unresponsive manner that it appeared a rather inadvertent manifestation of truth from a witness not highly committed to such.

If one accepts, and I do, that the drivers were free to choose the smash repairer to whom a particular vehicle was delivered; and if one accepts, as I do, no financial benefit accruing to Manning irrespective of how that choice is exercised (or, at least, no evidence on which one could find otherwise) then it would seem the more unlikely that performing such services for Trieste was part of Kazzi's service to Manning. With no commercial benefit accruing to him it seems essentially improbable that Manning would authorise his drivers, during ordinary trading hours, to do 'foreign orders' for Trieste.

Conversely, given such premises, it would appear likely the smash repairer would have a commercial interest in cultivating the tow-truck driver, who directly affected the volume of work of the smash repairer, rather than the tow-truck proprietor who did not.

4 UNREPORTED JUDGMENTS

It seems to me that such services as Kazzi rendered to Trieste he did so independently of his service to Manning and pursuant to his own relation with Trieste and for such reward as might be - even if it were only the opportunity to spray-paint his own vehicle, and that would seem to have some air of improbability."

Subsequently, and in a different context, his Honour said:

"What Kazzi did, he did of his own volition. What he did was not in furtherance of any relevant interest of his employer. Why he did it eludes me. Kazzi's only avowed reason is that he did so only because he was so directed by Manning. That explanation has been rejected as untenable.... Kazzi was on the roof as a consequence of his own choice and not in furtherance of his employer's relevant interest. That risk was induced by that non-employment action."

These findings of fact are not now in contest. At the least, it was, in my opinion, open to the learned judge to make them. In particular, it was, in my opinion, open to him to make the finding that:

"... Such services as Kazzi rendered to Trieste he did so (sic) independently of his service to Manning and pursuant to his own relation with Trieste and for such reward as might be - even if it were only the opportunity to spray-paint his own vehicle, and that would seem to have some air of improbability."

That finding is, in my opinion, central to this appeal.

2. The injury as arising out of the employment:

For an injury to be compensable under the Workers Compensation legislation it is necessary that it arise out of or in the course of the worker's employment. It has been said that, in general terms, the first alternative requires that there be a causal relation between the employment and the injury; the second alternative requires only a temporal relationship: see Kavanagh v Commonwealth 103 CLR 547; Bill Williams Pty Ltd v Williams 126 CLR 146 at 158-9. However, in each case it is necessary to determine what, for the purposes of this branch of the law is "the employment".

The learned judge considered this and associated questions at length. In deference to his Honour's judgment and because of what has been said as to his reasoning, I shall indicate my views as to the meaning of the term.

In Workers Compensation law, the term "employment" has been given a wide ambit. It is neither necessary nor desirable to attempt to draw the boundaries of the concept and of what may fall within it. It includes, of course, those things which a worker does because of the terms of his contract of employment. The terms of the contract of employment may be both express and implied: in many cases, what the employment provides for is to be spelled out by implication from the nature of the work and the circumstances. In addition, the content in law of that contract may be affected by the custom or the practice of a particular employment. And it is sometimes said that the doing of an act is, by implication, part of the contract of employment. Thus, in Wathen v AUT Holdings Pty Ltd (1977) WCR 1 the worker had, outside working hours, done repairs upon the truck which he was required by his employment to drive. On one view of his employment, the keeping of the truck in appropriate repair was incidental to what primarily he had to do and, for that reason, it was by implication part of the employment.

It has been recognised that, in addition to acts which, under the contract of employment, the worker is required to do, there are acts which, though he may not be required to do, he may be authorised or allowed to do. If the contract of employment binds the worker to achieve, or seek to achieve, a particular purpose,

URJ KAZZI| v MANNINGS TOWING PTY LTD (Mahoney JA) 5

he will, of course, ordinarily be authorised to do what is appropriate to achieve it. But there are other things, apart from the contract of employment itself, which, in this branch of the law, a worker may do within his employment. Thus, he may be authorised to sit and rest for a period: if he does so, he will not, in the formal sense, be working but ordinarily he will, while doing that, be acting within his employment. The term "incidental" has been used also to describe such things.

And "the employment" may also extend to require or authorise other acts or things. Reference has, I think, been made to this class of acts or things in cases such as McKenzie v William Holyman and Son Pty Ltd 61 CLR 584 and Dermody v Hiqgs and Hill Ltd (1937) 4 All ER 379. These are things which, though a worker is not required by his employment to do and which he might not be required to do if directed by his employer, yet are so connected with the employment that, if he does them, he is acting within the employment. Thus, it may be that, if the worker in the McKenzie case had been asked by the employer to hold the lantern to assist in the rescue of a worker who had fallen overboard from the employer's ship, he could not have been forced to do it. But, having opted to do it, he was acting within the employment. It may be that, in the circumstances referred to in the Dermody case, the chauffeur could not have been required by his employer to stop an intruder but, if he opted to do so, he would be acting within his employment. In the present case, if Mr Kazzi had gone on the roof to protect the property of which Mannings was bailee, what he did might have been held within his employment in this sense.

I come now to consider what Mr Kazzi did in this case and his Honour's finding of the relationship of it to his employment. His Honour held that it was not within his employment, in the sense to which I have referred. Two main questions therefore arise: whether it was open to his Honour so to hold; and whether, in the course of so holding, he acted on a wrong principle of law or otherwise approached the matter incorrectly.

Given the finding of fact which his Honour made it was, in my opinion, open to him to hold that the injury did not arise out of, ie, was not causally related to, the employment. And, I think, his Honour so held.

In understanding the terms of his Honour's judgment, it is important to have in mind what in this regard was the issue before him. As his Honour found, what brought about Mr Kazzi's injuries was his being on and falling through the roof. If it was to be shown that the injury arose out of, ie, was caused by the employment, it was incumbent upon Mr Kazzi to show that his being on the roof was part of the employment in the sense to which I have referred. He claimed it was. Mannings reply to this was that it was not part of the employment: its defence was that he was on the roof doing something which was not within the employment. Its claim was that the employment had been interrupted while Mr Kazzi did something for Trieste and himself.

The concept of interruption of employment has arisen most often in respect of injuries claimed to arise in the course of the employment. But, as in the present case, it can become relevant in respect of injuries claimed to arise out of the employment.

The considerations relevant in determining whether an employment has, in this sense, been interrupted, have been referred to in many cases. They are, in my respectful opinion, well illustrated by Bill Williams Pty Ltd v Williams 126 CLR 146; (1971) 1 NSWLR 547. In that case, the worker had been injured by a gunshot. The trial judge had found that the incidents leading up to his injury involved a series of somewhat minor assaults on him by one O'Neill who had

6 UNREPORTED JUDGMENTS

taken exception to the worker's activities with O' Neill's wife. Those assaults had taken place on the employer's premises. After the preliminary assaults the worker became aware that O'Neill was armed with a rifle and he therefore fled from the premises. He was shot outside the premises in the course of doing so: 126 CLR at 147.

In the High Court it was held that it was open to his Honour to hold that, while the injury had taken place during the hours of employment, it occurred during an interruption to it. McTiernan J: at 148; determined the matter by holding that whether the worker's flight interrupted his employment was a question of fact with which the court could not interfere.

Menzies J: at 151-2; determined the matter in a different way. His Honour held that, while the judge's findings as to what happened were findings of fact, his conclusion that the events interrupted the employment was one of law. But, his Honour said, there could be sound grounds for his treating what happened as interrupting the employment and therefore it could not be said as a matter of law the trial judge was in error in finding interruption of the employment: at 152.

Walsh J examined in detail the nature of the findings made by the trial judge and whether they were reviewable on appeal. His Honour: at 156-7; said:

"The decisions of fact of the learned primary judge require to be considered in two aspects. The first is that he found, according to the answers given to the questions submitted to him by the Court of Appeal, that there was a 'discussion' between the man named O'Neill and the present respondent near the drum and there was a 'further discussion' after the appellant had spoken to a man named Innes and both these discussions 'interrupted' the course of employment. The latter 'interruption' continued up to the time when the respondent was injured. On these findings the comment may be made that findings as to the events that actually occurred were truly findings of fact, but a conclusion that something which did occur 'interrupted' the 'course of employment' was not simply a finding of fact but was a conclusion that the events which occurred took the case out of the scope of the statute. I assume therefore that the description of what occurred as an 'interruption' of the course of employment was examinable by the Court of Appeal and that it was not a finding which concluded the case against the present respondent. But upon that assumption, I think that when the answers to the special questions are considered in conjunction with the findings in the original case stated, findings were made that in fact there was an occurrence of incidents, the second of these being the important one, in which the respondent took part and during which he was not actually performing his work and was engaged in some kind of exchange with O'Neill. One may question whether when describing these incidents it was apt to use the term 'discussion' but that is, in my opinion, of no consequence. In my opinion, it is not legitimate, having regard to what the learned primary judge stated, for an appellate court to say that there was no relevant break in what the respondent was doing. That there was a break must be accepted as a fact, although this does not necessarily preclude any further consideration of the ultimate question asked by the case stated. The second aspect of the facts which must be considered is the flight of the respondent immediately after the occurrence of the second of the incidents just discussed. The primary judge found that this was a flight from the premises where the respondent was employed and that he was fleeing from the threatened use of the gun and from the offers of violence of O' Neill" when he was shot. In my opinion, those findings do not compel nor do they exclude a conclusion that in making that flight the respondent was doing something incidental to the performance of his

URJ KAZZI| v MANNINGS TOWING PTY LTD (Mahoney JA) 7

duties. I do not regard the fact that he had reached the footpath as itself requiring a conclusion that he was not in the course of employment. But I am of opinion that a decision whether in making the flight he was or was not in the course of employment was in the circumstances a decision of fact and that a decision in his favour on that question was not one to which the learned judge was bound to come."

His Honour therefore concluded that "it should not be held that the primary judge erred in failing to be satisfied that the respondent met with an injury in the course of his employment".

Stephen J: at 158-9; said:

"Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work: Kavanagh v The Commonwealth per Fullagar J 103 CLR at S59. It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, 'there is nothing more in the concept than time measured by activity of a particular character': Kavanagh v The Commonwealth per Menzies J 103 CLR at 570. It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of employment. That which is incidental to a worker's work depends upon 'the sufficiency of the connection between the employment and the thing done by the employee' which is 'a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment': Whittingham v Commissioner of Railways (WA.) per Dixon J 46 CLR 22 at 29. It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he 'was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties': Humphrey Earl Ltd v Speechley per Dixon J 84 CLR 126 at 133: whether the accident has happened 'while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service': Pearson v Fremantle Harbour Trust 42 CLR 320 at 330.

I agree, with respect, with his [Menzies J] view that the critical finding of fact is no more than that when O'Neill returned with a rifle there was a discussion, of unstated content and duration, which the learned judge found interrupted the worker's course of employment. So meagre a finding of fact provides no material from which can be distilled a conclusion that, on those facts, the learned trial judge was in error in holding that the discussion brought the course of employment to an end....'

In the present case, the learned judge found the circumstances in which Mr Kazzi went on the roof: as I have said, his finding was to the effect that Mr Kazzi was there, not for Mannings' purposes but for the purposes of Trieste and himself. And, in my opinion, his Honour concluded that the employment was interrupted.

The finding that Mr Kazzi went on the roof not for Mannings' purposes but for those of Trieste and himself is one of fact which, in my opinion, it is not open to this Court to review. However, upon the basis of approach adopted in the Bill Williams case, I shall consider whether it was open to his Honour to conclude that the employment was interrupted.

8 UNREPORTED JUDGMENTS

It would appear that, before his Honour, it was submitted that that conclusion should not be drawn because what Mr Kazzi did was or could have been of assistance to Mannings and because his purpose or intention, namely, to assist Trieste and himself, was not relevant or determinative of this question. These submissions were, I think, renewed before this Court. The argument was to the effect that, if Mr Kazzi's intention or purpose be put aside, what he did was of assistance to Mannings and therefore was incidental to his employment in the sense to which, eg, Stephen J referred in the Bill Williams case. I do not think that these arguments should be accepted. It may be assumed that, if Mr Kazzi had climbed onto the roof to warn off the intruder in order to make it safe to leave the vehicle in Trieste's yard, he would have been acting within the employment in doing what he was, though not required, at least authorised to do. In that sense, he would have been doing what was incidental to the employment. But the judge's finding was that he was not there to help the employer. The fact that what he did collaterally assisted, or may have assisted, Mannings does not, in my opinion, make it an incident of his employment. It is, at the least, open to the judge to conclude that the employment was interrupted.

It was submitted for Mannings that, if such findings were open to the learned judge, he did not make them or, in the course of making them, he acted wrongly. Counsel have referred in detail to what, in a long judgment, his Honour said.

His Honour's conclusion was that what had happened was not within the employment. In coming to this conclusion, he examined in detail the question whether what Mr Kazzi did was within the employment because it was incidental to it. He concluded that it was not. In doing this, his Honour followed the language used in cases in which questions of the present kind have been considered: see, eg, the passages which I have cited from the judgment of Stephen J in the Bill Williams case. I have, in examining the matter, dealt with it by reference to whether the employment was interrupted. The question which his Honour considered was, I think, relevantly the question which, in my opinion, arose for decision.

Before the trial judge, counsel apparently made a large number of submissions, both as to fact and as to law. His Honour undertook an examination of at least a number of them and his considered authorities which he saw as relevant to them. The terms of the judgment have been the subject of critical examination before this Court. It is no reflection on the judgment that his course of reasoning is not always clear or that there is some overlapping in it. I do not think that it is necessary to examine, for this purpose, each aspect of his Honour's reasoning. In the end, he was concerned to determine whether, on the findings which he had made as to why Mr Kazzi was on the roof, he was engaged in "something incidental to" the employment. He concluded that he was not and that therefore the injury did not arise within the employment.

There is, however, one matter to which reference may be made. It was submitted that, in considering the meaning of "incidental" for this purpose the learned judge proceeded on the basis that the purposes for which Mr Kazzi did what he did were not relevant. It was submitted that this involved a misunderstanding of the principle involved and that for this reason his Honour's conclusion was vulnerable. I shall assume, without so deciding, that there is, in portions of the judgment, support for the view that in this respect, his Honour held purpose to be irrelevant.

URJ KAZZI| v MANNINGS TOWING PTY LTD (Priestley JA) 9

But there is, I think, some confusion in relation to this matter. I have referred to the nature of "the employment" in this branch of the law and to some of the different uses of the term "incidental" in that regard. In some cases, whether an act is incidental to the employment and so within it will be determined merely by the nature of the act and its relationship to what the worker is engaged to do. An act may be incidental in this sense notwithstanding that the worker has no subjective purpose to assist the employer in what he does. In other cases, intention or purpose may be relevant or even determinative. In a case such as his Honour found this to be, the fact that his purpose in going on the roof was to assist Trieste is relevant in determining whether there was an interruption of the employment.

I therefore see no basis on which his Honour's conclusion that the injury did not arise out of the employment should be set aside.

3. Injury in the course of the employment: Mr Kazzi's case was put alternatively on the basis that the injury arose in the course of the employment. The bulk of the argument before the learned judge and before this Court as directed to this alternative.

T have, in dealing with the claim that the injury arose out of the employment, dealt with the considerations here relevant. As I have said, his Honour concluded that the injury did not arise in the course of the employment because what Mr Kazzi did in going on the roof was not incidental to his employment. It was, as I have said, an interruption of it. His Honour's conclusion was therefore open to him and, on his findings, correct.

In my opinion the appeal should be dismissed with costs.

Priestley JA The appellant has appealed to this Court, claiming within the meaning of s32 of the Compensation Court Act, to be aggrieved in point of law by an award of that Court which dismissed his claim for compensation for an injury he suffered on 22 September 1984.

In the Compensation Court the appellant's claim was heard by Judge Burke. The issue before him was whether the injury for which the appellant was claiming compensation arose out of or in the course of his employment. Relevantly to this issue, conflicting evidence was given about some matters of fact immediately preceding the appellant's injury. Before holding against the appellant on the issue, Judge Burke found the following facts.

On 22 September 1984 the appellant's employer was Mannings Towing Pty Ltd ("the employer company"). The appellant had been working for the employer company for some years as a tow truck driver. In the evening of 22 September he and another of the employer company's tow truck drivers, Mr Baker, had attended the scene of an accident where each of them had taken a damaged vehicle in tow. The appellant and Mr Baker had decided to tow the vehicles to the premises of a smash repairer known as Trieste Smash Repairs ("Trieste"). The tow trucks were equipped with two-way radios on which the drivers could communicate with the employer company's base operator. The appellant told the base operator he and Mr Baker were taking the damaged vehicles to Trieste's premises. Mr Manning, the person in charge of the operations of the employer company, who had a key to the premises of Trieste, heard that message and told the appellant and Mr Baker by the radio that he would meet them at Trieste's premises with the key. While the three were on their way to Trieste's premises they heard the base operator broadcast that it was possible there was an intruder in the Trieste premises. The appellant and Mr Baker arrived at the yard before Mr Manning. Mr Baker, who was accepted by the trial judge when his evidence was

10 UNREPORTED JUDGMENTS

different from that of the appellant, said that after the appellant had climbed over the fence and looked around inside the front yard, "... a neighbour opposite the smash repair place, he said there's someone on the roof. George climbed up on the roof.... Then George was on the roof, I told him to get down before he fell through and a couple of seconds after that George fell through the roof."

The appellant claimed workers compensation for the injuries he suffered from the fall.

The appellant's somewhat different account of events was that he had gone to head office to collect the key for the Trieste premises before going there, that as he had opened the front gates with the key, Mr Manning arrived, and that he had gone on to the roof at Mr Manning's request to check if there was anything up there. In not accepting the appellant's version Judge Burke said the appellant had lied to improve his prospects of recovering compensation.

Other facts found by Judge Burke were that the Trieste keys in Mr Manning's possession were keys to the gate of the Trieste yard, not to the workshop or other building; the drivers of the employer company's tow trucks decided to which repair yard a particular vehicle would be delivered; Mr Manning maintained both a business relation and personal relation with the proprietor of Trieste; the employer company received no monetary reward from Trieste for delivering vehicles for repair to the Trieste yard, its towing charges being met by the owners of the vehicles; the relation between Mr Manning and the pro- prietor of Trieste was sufficiently well known in the area for a person in the neighbourhood of Trieste's premises, on becom- ing aware of an intruder on those premises, to contact the base operator; the appellant occasionally did work on the premises of Trieste, unconnected with his employment by the employer company.

On those facts, Judge Burke first considered whether the appellant's injury was suffered in the course of his employment. He discussed a number of cases put to him in which courts of both binding and persuasive authority had indicated various tests by which this question may be answered. If I have understood correctly the way in which he reasoned, it was as follows. (1) Relying on what was said by Lord Wright in Noble v Southern Railway Company (1940) AC 583, and Mahoney JA in Wathen v AVT Holdings Pty Ltd 1977 WCR 1, he said the determining factor is the character of the act - motive is irrelevant. (2) As explained by Mahoney JA in Wathen, the act may be incidental to the course of employment. (3) Judge Burke then said that at its broadest, the question is whether the act causing injury had a rational connection with the furtherance of the aims of the contract of service. (4) Such a connection (in Judge Burke's view) encompassed more than the mere per- formance of the specific job a worker was employed to do and (i) included reasonable action in dealing with an internal problem, (ii) in regard to a problem arising extraneously to the workplace or circumstances, depended upon the impact of that event on the work situation, this always being a matter of fact and degree. (5) The appellant's motive in climbing on the roof was irrelevant; what was relevant was the objective quality of the act, this being determinative of its relation to the employment; the act was fairly hazardous, and one by which the appellant submitted himself to risk of injury in various ways; it furthered no end of the appellant's employer; what the appellant was doing could not have been directed towards protecting any vehicles left or to be left at the Trieste premises by the employer company.

Step (5) summarises the decisive part of Judge Burke's reasoning, although, in answer to the appellant's reliance on some of the particular tests stated in the cases, he also said that what the appellant had done had been done voluntarily

URJ KAZZI| v MANNINGS TOWING PTY LTD (Priestley JA) 11

and in no sense under any direction from any person or any require- ment or obligation of his conditions of employment; nor was what he did something which he might reasonably be expected, authorised or required to do as an incident of his employment.

His conclusion was that looked at objectively the act of the appellant was not in the course of his employment.

The judge relied on various arguments as supporting this reasoning. He mentioned that so far as he could tell from the evidence the relation between the employer company and Trieste was not a contractual one or such as to impose a burden on the employer company to maintain the security of Trieste's premises. He noted it was lawful for the employer company to help Trieste but not obligatory. This part of his reasons was directed to explaining his disagreement with a submission that the appellant could be seen as having acted in his employer's business interests.

A related argument for the appellant was that the employer company had a direct interest in seeing that premises where it left vehicles entrusted to it for towing would be reasonably safe for those vehicles. Judge Burke acknowledged that the employer company had to exercise reasonable care of the vehicles of which the company was a bailee for reward. But this, in his opinion, did not mean that it was to the employer company's advantage on the night of 22 September to see that Trieste's premises were reasonably safe for vehicles to be left at; this was because Mr Manning may have decided to exercise reasonable care in regard to the vehicles, once he learned of an intruder on the Trieste premises, by directing that the vehicles under tow by the appellant and Mr Baker should be taken to some other of the various yards at which the employer company deposited vehicles from time to time. Since Mr Manning had the key to the yard he could leave the making of this decision until he arrived at the yard himself. I will consider this view of the judge a little later in these reasons.

Having rejected the submission that the appellant's injury occurred in the course of his employment, the judge turned to the alternative submission that it arose out of his employment. This submission was apparently put on two bases, the first that on the facts as contended for by the appellant there had been an implied direction to him to investigate the possible presence of an intruder, and the second that as he would not have been at the Trieste premises but for his employ- ment, the employment therefore constituted a relevant cause of the injury. The judge rejected both bases, the first because it was based on facts which he had declined to find, and the second because he thought there was no causal connection. What he said in regard to the first basis can not be and has not been questioned in this Court. Submissions were, however, made to this Court concerning his rejection of the second basis.

It was submitted in this Court that error of law was involved in Judge Burke's findings regarding both "course of employment" and "arising from the employment". In regard to "course of employment", Judge Burke's reasoning involved the application by him of relevant tests to facts found by him, in a way not able to be challenged in the limited appeal available under s32 of the Compensation Court Act, subject, however, to one qualification which seems to me to be critical to this appeal.

It seems quite clear that a material ingredient in his Honour's consideration of the character of the appellant's act in getting on the roof, was that it furthered no end of the appellant's employer. His Honour repeated this view in various ways: "On the evidence I... find no interest of the employer which Kazzi sought to

12 UNREPORTED JUDGMENTS

advance;" two paragraphs later: "What he did was not in furtherance of any relevant interest of his employer;" a little later: "I do not see any benefit accruing to the employer from Kazzi's action...". On the facts found by Judge Burke, it seems to me that he was wrong in law in saying that there was no interest of the employer company which the appellant sought to advance. The employer company was, as Judge Burke acknowledged, bound to exercise reasonable care of the vehicles in tow, of which it was a bailee at least until they had been left in the repair yard. On the facts found, the appellant had told Mr Manning that he and Mr Baker were going to leave the vehicles they were towing in the Trieste yard. Mr Manning had replied that he would meet them at the yard with the key to open the gate to the yard. Thus, at the time the appellant and Mr Baker arrived at the yard in advance of Mr Manning, all that the appellant knew was that his intention to leave the vehicle he had towed there was acquiesced in by Mr Manning. Judge Burke said there was no interest of the employer company in the safety of the Trieste yard at that point, be- cause Mr Mannning may have decided upon arrival at the yard with the key, to avoid any risk to the vehicles from leaving them in the yard, by directing that they be taken elsewhere. That observation does not seem to me to have taken into account the fact that until such time as Mr Manning arrived and made such a decision, the appellant's understanding was as I have just outlined it: he had undoubted reason to believe that Mr Manning was coming to let him tow the vehicle into the yard. It may be arguable that he should have realised at that time that Mr Manning might decide to direct the vehicles under tow to be sent elsewhere. Even had he realised that possibility however, it was still undoubtedly the position that until Mr Manning reached such a decision, the appellant, in the course of his employment on arrival at the locked yard, had reason to believe that the vehicle he was then intending to leave inside the yard, as he had authority to do subject to countermand by Mr Manning, might be at risk from an intruder reported to be on the premises. In those circumstances, it seems to me that to say that taking steps towards seeing whether the premises were in fact at risk from an intruder, was not in any real sense in the interests of the employer company, necessarily involves a misunderstanding of the legal position. In terms of s32 of the Compensation Court Act, it seems to me that for a trial court to consider the question whether the appellant's injury was suffered in the course of his employment by reference to the proposition of law that there was no interest of the employer company which the appellant could be seeking to advance, brings the case into the category entitling the appellant to say that he is aggrieved by an award of the court in point of law.

The remaining matter to be considered is whether there was error of law involved in Judge Burke's conclusion that there was no causal connection between the appellant's employ- ment and his injury, and hence that the injury did not arise from the employment. The ruling authority on this question in this Court is Tarry v Warringah Shire Council (1974) 48 WCR 1. The facts of the case sufficiently appear from a paragraph in the reasons of Hutley JA:

"Tn my opinion it is quite clear on the evidence that the injury from which the deceased died arose out of his employment. It arose out of an alterca- tion between two employees of the Warringah Shire Council about a matter which concerned their res- pective authorities and duties; it arose in a work situation. It does not follow that the injury did not arise out of the employment because in the course of what he was doing the deceased was doing acts which were not in accordance with his duties as a foreman. It is, of course, misconduct in a foreman

URJ KAZZI v MANNINGS TOWING PTY LTD (Clarke JA) 13

to settle matters of responsibility by engaging in fisticuffs with a man under him. That, however, has really nothing to do with the ques- tion." (at 6)

His Honour then went on to make quite clear what he thought was the relevant test:

"The facts proved and established by his Honour show that the injury from which he died was directly and unbrokenly connected with his em- ployment, that is, things he was doing properly within the scope of his employment." (also at 6) Glass JA said, (I omit his citations):

"Tn a given situation the injury may arise out of the employment, even though at the time it is sustained the deceased or the applicant is no longer in the course of his employment... the proper test for determining whether the injury arose out of the employment has been stated by Jordan CJ, when he described the employment as causing or contributing to the injury; by Fullagar J... when he states the need for a causal connection between the employ- ment and the injury and by Starke J... when he says 'the words "out of" require that the injury had its origin in the employment'." (at 8)

Samuels JA said:

"The question which we have to determine is to be answered by enquiring whether there was a causal connection between the employment and the injury." (at 8)

It seems clear that in saying there was no causal connection between the appellant's employment and the injury, Judge Burke had in mind the conclusion he had stated when dealing with the submissions concerning "in the course of the employment"; that is, that the appellant was serving no employment related purpose whatsoever in going upon Trieste's premises (and its roof) before Mr Manning's arrival. Had he been justified in taking that consideration into account in considering the question of causality, it may be that the decision on causality would fall within the factual area with which this Court is not entitled to deal. However, for the reasons I have given in relation to the "course of employment" argument, it seems to me that the Compensation Court was bound to consider the question of causality in the light of there being a relevant interest of the employer which the appellant, although not bound to pursue, could pursue in connection

with his employment, although in the event he went about it rashly. In my opinion, the appellant was entitled to have the causal question decided in the light of this consideration. Had it been so decided, it seems to me inevitable that application of each of the slightly differently worded formulations of the three members of this Court in Tarry, must have led to the conclusion that the injury arose out of the appellant's employ- ment. The way in which this Court applied Tarry in Davis v Mobil Oil Aust Ltd (Court of Appeal, unreported, 3 February 1988) seems to me to support this opinion.

I propose that the appeal be allowed, the award made by the Compensation Court be set aside, and that the matter be remitted to the Compensation Court for determination by that Court in accordance with this Court's decision. The respondents should pay the appellant's costs of the appeal and the respond- ent, Mannings Towing Pty Ltd, should, if qualified, have a cer- tificate under the Suitors Fund Act.

Clarke JA In the Compensation Court the appellant contended that the injuries which he suffered "arose out of" his employment and, in the alternative, were suffered "in the course of the employment".

14 UNREPORTED JUDGMENTS

In order to establish that his injury arose out of his employment it was necessary for him to show a causal connection between the two. It was not, however, necessary to establish a causal link in order to succeed on a claim that the injury was suffered in the course of employment. It is well established that in order to show that the injury occurred in the course of employment it is necessary only for the worker to establish that he sustained injury while engaged in the work which he was employed to do or in something incidental to that work. (Bill Williams Pty Ltd v Williams, 126 CLR 146, per Stephen J at 158-9; Kavanagh v The Commonwealth, 103 CLR 547, per Fullagar J, at 559 and Menzies J at 570.) There has been discussion as to the meaning of the word "incidental" in this context.

In Wathen v AVT Holdings Pty Ltd, (1977) 51 WCR 1, Mahoney JA expressed the view that the word had an artificially extended meaning. The authorities to which he referred present ample support for his conclusion without delimiting the circumstances in which it would be open to a court to hold that the worker was in the course of his employment at the critical time.

In determining whether it was open to the trial judge to conclude that the appellant was not injured in the course of his employment I proceed upon the basis that it was appropriate for the trial judge to apply the approach which appears in the judgment of Stephen J in Bill Williams Pty Ltd v Williams, at 159. His Honour said:

"Tt is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of employment.

That which is incidental to a worker's work depends upon 'the sufficiency of the connection between the employment and the thing done by the employee' which is 'a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment': Whittingham v Commissioner of Railways (WA) per Dixon J ({1931] 46 CLR 22, at 29). It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he "'was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties": Humphrey Earl Ltd v Speechley, per Dixon J ({1951] 84 CLR 126, at 133)." It was common ground that when the appellant drove the tow truck to the premises of Trieste Smash Repairs he was acting in the course of his employment. While he awaited Manning's arrival he remained in the course of his employment. The question with which his Honour was confronted was whether the appellant was doing something incidental to his employment in scaling the fence of the Trieste Smash Repairs premises, surveying the yard and then climbing onto the roof of the premises.

The appellant's case was that he took that course of action because of express instructions from his employer. There can be no doubt that if his case had been accepted then he would have established that he was in the course of his employment when he fell through the roof of Trieste Smash Repairs.

However, his Honour did not accept the appellant as a witness of truth and rejected his evidence in this respect. This was a course open to the trial judge and being essentially a factual determination is not susceptible to review in this appeal. Once his Honour concluded that there was no instruction by the

URJ KAZZI v MANNINGS TOWING PTY LTD (Clarke JA) 15

employer, or a co-employee, to the appellant to enter the premises no reason appeared from the evidence why he took that course. One inference which was open to his Honour was that he did so in order to ensure that the vehicle which he had towed to the premises could safely be left there.

However, nothing in the evidence compelled that conclusion. There were a number of other inferences open including an inference that the appellant was acting in the interests of the owner of the premises because of his personal dealings with that owner. At all events it could not be said that his Honour was compelled, as a matter of law, to conclude that the appellant was "doing something which he was reasonably required, expected or authorised to do in order to carry out his duties". Nor could it be said that his Honour was compelled to conclude that the appellant's action in scaling the fence and climbing onto the roof of the premises bore such a connection with his employment that it should be regarded as an incident of it.

It is often difficult to determine whether different conclusions or but one conclusion are, or is, reasonably open on the facts which are expressly found by a trial judge. But on a consideration of the facts found by his Honour and with particular regard to the rejection of the case which the appellant sought to make I have come to the conclusion that it cannot be said that the only conclusion which was open was that the appellant was performing actions incidental to his employment.

Where, as here, there are questions of degree involved it would be a rare case in which the court could hold that a tribunal of fact was legally compelled to a particular conclusion. This is not, in my opinion, one of those cases.

It was also argued that his Honour's determination was vitiated by an erroneous conclusion that the appellant was serving no interest of his employer at the relevant time. It was said that the evidence clearly established the respondent's interest in securing the vehicles which the tow trucks had taken to the premises and which were to be left there overnight. Hence, it was wrong of his Honour, so the argument ran, to conclude that there was no interest of the employer/respondent which the appellant sought to advance.

I do not read his Honour's reasons for judgment as denying the existence of the respondent's interest in ensuring the security of premises in which vehicles which his tow trucks had brought to the premises were placed. Nor do I think that his Honour was denying that the respondent's obligation as bailee of a vehicle placed in premises would give him an interest in the security of those premises. What I understand the trial judge to have been saying is that when the appellant entered the premises he did not do so in order to protect or to advance an interest of the respondent. So much is clear I think from his Honour's statement that what the appellant did was not in furtherance of any relevant interest of his employer.

That statement does not deny the existence of the respondent's interest in the security of the premises once the broken down vehicles had been placed in the premises but involves the rejection of the notion that the evidence supported the conclusion that when the appellant entered Trieste's premises he was acting in furtherance of any interests of the respondents. In this context it was not wholly irrelevant to observe, as his Honour did, that there was no evidence that there were any vehicles which had been brought to the premises by the respondent's employees then housed within it. All that the evidence demonstrated was that there were the two vehicles outside awaiting the arrival of Mr Manning.

16 UNREPORTED JUDGMENTS

It seems to me that in these circumstances it was open to his Honour to conclude that the appellant in climbing onto the roof was not acting in furtherance of his employer's interests and was not doing something incidental to his employment.

The appellant also sought to argue that his Honour's factual findings compelled the conclusion that his injuries arose out of the employment. It may be that there are cases in which a causal nexus between the injury and employment may be shown even though the injury did not arise in the course of the employment. But in the present circumstances the conclusion that the appellant was not carrying out an activity incidental to this employment when he fell through the roof and sustained injury seems to me to compel the conclusion that his Honour was correct in rejecting the appellant's alternative claim.

The primary submission was that the instruction for the appellant to proceed to Trieste Smash Repair premises placed him in the zone of danger and was sufficient to establish the necessary causal link. In my opinion the submission is misconceived. The instruction took the appellant to the general location but those actions which his Honour regarded as being carried out of the appellant's own volition, and not for the purposes of his employer, were the ones which placed him in the zone of danger.

The appeal is dismissed with costs.

Counsel for the Appellant: BJ GROSS QC and CA RIMMER Solicitor for the Appellant: McLELLANDS

Counsel for the Respondent: I FAULKNER

Solicitor for the Respondent: JA KERNICK