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  •   Notable Unreported Decision

Ferguson v WorkCover Queensland

 

[2013] QSC 78

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

DELIVERED ON:

27 March 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

15 March 2013

JUDGE:

Applegarth J

ORDER:

The application is dismissed.

CATCHWORDS:

Workers’ Compensation – Insurance and Levies – Liability of insurers and statutory authorities Other matters – where applicant employed as a delivery driver – where deliveries made from employer’s warehouse in Tweed Heads – where applicant delivers stock in Queensland and in New South Wales – where majority of applicant’s deliveries made in Queensland  ­– where applicant injured during employment – whether applicant’s employment connected with Queensland for the purpose of s 113 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) –  whether applicant’s employment connected with New South Wales for the purpose of s 155 of the Workers’ Compensation Act 1987 (NSW) – whether applicant “usually works” in New South Wales as well as in Queensland – whether applicant “usually based” in Queensland or in New South Wales

Workers’ Compensation Act 1987 (NSW), s 9AA, s 155

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 10, s 48, s 113

Avon Products Pty Ltd v Falls (2009) 236 FLR 212; [2009] ACTSC 141, cited

Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34; [2010] ACTCA 21, considered

Hanns v Greyhound Pioneer Australia Ltd (2006) 196 FLR 361; [2006] ACTSC 5, considered

Martin v R J Hibbens Pty Ltd (2010) 8 DDCR 535; [2010] NSWWCCPD 83, considered

RHG Home Loans Pty Ltd v Employers Mutual New South Wales Ltd [2012] 1 Qd R 262; [2011] QSC 28, cited

Tamboritha Consultants Pty Ltd v Knight (2008) 58 SR (WA) 291; [2008] WADC 78, considered

Weir Services Australia Pty Ltd v Allianz Australia Insurance Ltd [2013] NSWSC 26, cited

COUNSEL:

L M Willson for the applicant

R M Treston for the respondent

SOLICITORS:

Parker Simmonds for the applicant

DibbsBarker for the respondent

[1] The applicant was injured on 5 May 2010 when he was employed by Reece Pty Ltd (“Reece”) as a delivery driver.  The truck he drove was based at Reece’s Tweed Heads Onsite warehouse, just over the New South Wales border.  Organisationally, the Tweed Heads Onsite branch formed part of Reece’s Queensland operations, with the Warehouse Manager reporting to Reece’s State Manager – Queensland.

[2] The applicant’s duties as a delivery driver included delivering products in an area that extended to Beenleigh in the north, Jimboomba, Beaudesert and Springfield Lakes in the west and Casino and Lismore in the south.  The applicant’s evidence is that in the last six months before his injury, 70 or 80 per cent of his deliveries were in Queensland, with many of them to Springfield Lakes.  The applicant’s manager at the time, Mr Cuddeford, confirmed that the applicant would make deliveries two or three times a week to Springfield Lakes and would be given other jobs on the way.  Mr Cuddeford’s evidence was that most days there would be a North run and also a South run from the Tweed Heads warehouse.  On some days there would be only a North run or a South run.  On some days, like 5 May 2010, the North run and the South run were combined.  Mr Cuddeford recalled that the applicant went south “a little bit”.

[3] The applicant was a permanent employee.  In the period leading up to his injury there were other drivers who were employed as casuals.  They would not be required to work every day, and on the days they were required to work they would tend to be given the shorter runs.

[4] Leaving aside for the moment the reliability of the percentage figure which the applicant attributed to his work in Queensland,[1] I find that in the months leading up to his injury he worked predominantly in Queensland.

[5] The day of the applicant’s injury was unusual in some respects.  There were only six deliveries, which were fewer than normal.  Three were to addresses in Queensland.  The other three were to addresses in New South Wales.  After completing the deliveries in Queensland, the applicant drove to an address at Goonellabah on the outskirts of Lismore.  He had to deliver a hot water system to a building site.  He was unable to obtain assistance from a cleaner at the site who had a disability.  In attempting to deliver the hot water system the applicant suffered a significant personal injury. 

[6] He lodged a claim for workers’ compensation with WorkCover Queensland, which rejected his claim on 29 October 2010 on the basis that he worked in New South Wales.  The applicant also lodged a claim for workers’ compensation with QBE Workers Compensation (NSW) Ltd as agent for the NSW WorkCover Scheme.  By letter dated 9 February 2011 it accepted liability for the applicant’s workers’ compensation claim and, subsequently, payments were made to the applicant in respect of his workers’ compensation claim.

[7] By Notice of Claim dated 18 July 2012, the applicant’s solicitors gave notice of claim for damages pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Queensland Act”).

[8] By letter dated 7 August 2012 WorkCover Queensland advised the applicant’s solicitors that pursuant to s 10(2)(b) of the Queensland Act the applicant was not entitled to seek damages in Queensland as that section excludes from cover claims made against the employer for which it is obliged to hold a policy for liability in another State.  The letter advised that the applicant’s employer was bound to insure the applicant against any liability to him for damages from his employment in New South Wales by virtue of s 155 of the Workers’ Compensation Act 1987 (NSW) (“the NSW Act”).

[9] The applicant, by an amended originating application, seeks a determination of the correct insurer for the purpose of his Notice of Claim dated 18 July 2012.  He submits that his Notice of Claim was correctly brought since his employment was connected with Queensland: Queensland being the State in which he usually worked in his employment.  He also submits that because he did not usually work in New South Wales, Reece did not have an obligation to insure pursuant to s 155 of the NSW Act in respect of the liability which he alleges arises out of the incident.  As a result, s 10(2)(b) of the Queensland Act is not triggered, and WorkCover Queensland is the insurer which is obliged to indemnify in respect of any liability to pay damages.

[10] The applicant seeks declarations that:

(a)his employment was connected with Queensland, pursuant to s 113 of the Queensland Act;  and

(b)s 10(2)(b) of the Queensland Act does not apply to his claim for damages.

Relevant legislation[2]

[11] Section 113 of the Queensland Act provides that compensation under the Act is only payable “in relation to employment that is connected with this State.”  Section 113(2) provides that the fact that a worker is outside Queensland when the injury is sustained does not prevent compensation being payable under the Queensland Act in relation to employment that is connected with Queensland.  Section 113(3) states:

“A worker’s employment is connected with –

(a)the State in which the worker usually works in that employment;  or

(b)if no State or no 1 State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment;  or

(c)if no State or no 1 State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.”

According to s 113(6), in deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer.  However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than six months. 

[12] Section 48 of the Queensland Act requires an employer to maintain “accident insurance” for injuries sustained to workers in respect of both compensation and damages.  Section 10(1) of the Queensland Act relevantly defines damages as damages for injuries sustained by a worker in circumstances creating, independently of the Act, a legal liability in the worker’s employer to pay damages to the worker.  Section 10(2) provides that a reference in subsection 10(1) to the liability of an employee does not include a liability against which the employer is required to provide under another Act, or a law of another State, the Commonwealth or of another country. 

[13] Section 10(2)(b) of the Queensland Act in referring to a liability against which the employer is required to provide under a law of another State prompts attention in this matter to s 9AA and s 155 of the NSW Act.[3]  Section 155 of the NSW Act requires an employer to obtain from a licensed insurer a policy of insurance.  The obligation to do so applies in respect of employment that is connected with New South Wales.  This requires reference to s 9AA of the NSW Act to determine whether a worker’s employment is connected with New South Wales.  Section 9AA is cast in similar terms to s 113 of the Queensland Act.  Section 9AA(3) is in the same terms as s 113(3) of the Queensland Act.

[14] Each statute first inquires about “the State in which the worker usually works in that employment” and if more than one State is identified as the State in which the worker usually works in that employment, then the worker’s employment is connected with the State in which the worker is “usually based for the purposes of that employment”.  If there is no such State or more than one such State, then the inquiry cascades to determining the State in which the employer’s principal place of business in Australia is located.

The issues

[15] The same essential issues arise in determining whether the applicant’s employment was connected with Queensland for the purpose of s 113 of the Queensland Act, and whether the applicant’s employment was connected with New South Wales for the purpose of the obligation to insure under s 155 of the NSW Act.  The essential issue for the purpose of s 113 of the Queensland Act is whether the applicant’s employment was connected with Queensland, and this will be so if Queensland is “the State” in which he “usually” worked in that employment.  The related issue under the NSW Act is to determine “the State” in which the applicant “usually” worked in his employment.  If no one State is identified as being the State in which he usually worked in that employment, then the inquiry turns to the State in which he was “usually based for the purposes of that employment”.

[16] The applicant submits that the State in which he usually worked was Queensland.  His alternative submission is that he was usually based in Queensland.

[17] WorkCover Queensland submits that although the applicant carried out a significant proportion of his work in Queensland and usually worked there he also usually worked in New South Wales. Next, WorkCover Queensland submits that the applicant was usually based in New South Wales

[18] These submissions require consideration of the meaning of “usually works” in subsection (3)(a) and the meaning of “usually based” in subsection (3)(b) of the relevant provisions. 

The meaning of “usually works” in its statutory context

[19] The word “usually” connotes something that is customary, common, frequent or regular.[4] The Shorter Oxford English Dictionary defines usually as “In a usual or wonted manner; according to customary, established or frequent usage; as a rule.”[5]

[20] The expression “usually works” appearing in s 113(3)(a) of the Queensland Act and s 9AA(3)(a) of the NSW Act are contained in provisions which are intended to determine whether a worker’s employment is connected to a State.  They appear in provisions that are intended to enable the appropriate State jurisdiction to be ascertained for workers’ compensation purposes.  These provisions were intended to “eliminate the need for employers to obtain workers’ compensation coverage for a worker in more than one jurisdiction”.[6]  Section 9AA of the NSW Act was intended to provide “certainty for workers about their workers’ compensation entitlements and ensure that each worker is connected to one jurisdiction or another.[7]  The expression “usually works” appears in provisions which create progressive tests[8] or a “cascading test”[9] for determining whether the worker’s employment is connected with a State. 

[21] The test posed by subsection 3(a) of inquiring about “the State in which the worker usually works in that employment” must be considered in its statutory context.  There may be no State, or no one State, in which the worker usually works.  In such an event the connection is determined by inquiring about “the State in which the worker is usually based for the purposes of that employment” and if that inquiry does not yield an answer then the next test is to ask “the State in which the employer’s principal place of business in Australia is located.”  The statutory context requires “usually works” in subsection 3(a) to be interpreted in a way which, depending upon the circumstances, permits the conclusion to be drawn that the worker usually works in more than one State.  This tells against an interpretation which determines in which State the worker usually worked by simply asking in which State he spent the majority of his or her time at work.

[22] Legislation in other States and Territories contains similar provisions for determining whether employment is connected with a State or Territory.  Some care is required in considering decisions in relation to these other provisions because of slight differences in their wording.  However, decisions which interpret the meaning of “usually works” and “usually based” in such provisions provide guidance for the proper interpretation of those expressions in s 113 of the Queensland Act and s 9AA of the NSW Act.

Authorities

Hanns v Greyhound Pioneer Australia Ltd

[23] In this matter Gray J was concerned with the proper interpretation of s 7A of the Workers’ Compensation Act 1951 (ACT) which defined the circumstances in which a worker was a worker in a Territory or State.  Section 7A(2)(a) referred to the Territory or State in which “the worker usually carries out the work of the employment concerned”. The appellant unsuccessfully contended before a magistrate that it was customary for him to carry out the work of his employment in, at least, New South Wales and the Australian Capital Territory.  He submitted that as he usually carried out his work in both New South Wales and the Australian Capital Territory there was no single Territory or State identified by s 7A(2)(a) and that s 7A(2)(b) applied, the Australian Capital Territory being the Territory which was the appellant’s base for the purpose of his employment as a bus driver.  However, the magistrate upheld the respondent’s contention that s 7A(2)(a) applied and ruled that the appellant usually carried out the work of his employment in New South Wales because the majority of the time spent by the appellant in carrying out the work of his employment was spent in New South Wales, and not the Australian Capital Territory.  This finding was found to involve an error of law.

[24] The respondent’s principal contention that the word “usually” in the section meant a prevalence, in the sense of more often than not, was rejected as not open on the dictionary definitions of “usually” and “usual”.  An inquiry into the relative time spent in performance of the worker’s duty in each jurisdiction had the merit of logic and simplicity and reflected the magnitude of the risk of injury.  However, notions which embraced that which is customary, frequent or regular did not imply a quantitive test.[10]  The legislature did not use words that required the time spent in each place to be quantified.  The structure of the section also told against a quantitive test.  Subparagraph (a) predicated work in a single Territory or State and if there was no single Territory or State, then the single Territory or State comprising the worker’s base for the purpose of employment.  As Gray J stated:

“The fact that one or more Territory and State are envisaged apart from a single Territory or State indicates that what is involved is more than just asking the question of where the worker spends the majority of his working time.”[11]

[25] Giving the word “usually” its more obvious meaning of habitual or customary or that of “in a regular manner” was said to be “relatively simple and straightforward.”[12]  The first limb of the section involved looking to “the customary or regular places where the work is carried out.”[13]  When a worker is customarily or routinely required to carry out his work in more than one Territory or State, one next inquired as to the worker’s usual base. 

Tamboritha Consultants Pty Ltd v Knight

[26] Commissioner Herron interpreted the meaning of “usually works” in s 20 of the Workers’ Compensation and Injury Management Act 1981 (WA) which contained provisions in similar terms to s 113 of the Queensland Act and s 9AA of the NSW Act in determining the State in respect of which employment is connected.[14]  Section 20(4) is in identical terms to s 113(3) of the Queensland Act and s 9AA of the NSW Act.  During the 12 months prior to the accident the defendant spent 64 per cent of his time working for the employer in Victoria and 36 per cent working for the employer in Western Australia.  Over the previous six years he had spent 74.5 per cent of his time working for the employer in Western Australia and 4.6 per cent working for the employer outside Australia

[27] Commissioner Herron concluded that the fact that for the 12 month period the defendant spent more of his time in Victoria and, if the whole work history was considered, more of his time in Western Australia did not provide any useful guide or assistance in determining where the defendant usually worked for the purpose of s 20(7) which required regard to be had to the worker’s work history over the preceding period of 12 months and the intentions of the worker and employer.[15]  Commissioner Herron went on to express the opinion that “the percentage assessment comparison of the time worked in Victoria and the time worked in Western Australia does not establish the defendant usually worked in Victoria simply because the majority of the time was worked by him in Victoria.”[16]  Section 20(4)(a) was not expressed in terms of the State in which the worker worked for the majority of his time.  The expression “usually works” was not synonymous with where the worker “works for the majority of the time.”[17]  Accordingly, if a worker worked 51 per cent of his time in one State and 49 per cent of his time in another State, it did not follow that the worker “usually works” in a State where he works for the majority of the time, simply assessed on a percentage basis.[18]

[28] Commissioner Herron went on to consider the expression “usually based” in s 20(4)(b) of the Western Australian Act, and I will return to this topic.

Martin v RJ Hibbens Pty Ltd

[29] This decision contains a comprehensive analysis of s 9AA of the NSW Act and relevant authorities.[19] The following principles were derived from the relevant authorities and were found to be applicable to the determination of cases under s 9AA of the NSW Act:

“(a)regard should always be had to the terms of the contract of employment;

(b)‘usually works’ means the place where the worker habitually or customarily works, or where he or she works in a regular manner (Hanns at [26]).  It does not mean the place where the worker works for the majority of time (Knight at [76]) and is not simply a mathematical exercise (Falls at [43]), though the time worked in a particular location will naturally be relevant.  It will also be relevant to look at where the worker is contracted to work (Falls).  Regard must be had to the worker’s work history with the employer and the parties’ intentions, but ‘temporary arrangements’ for not longer than six months within a longer or indefinite period of employment are to be ignored. Whether an arrangement is a ‘temporary arrangement’ will depend on the parties’ intentions, which will be ascertained by looking at the worker’s work history and the terms of the contract.  A short-term contract of less than six months that is not part of a longer or indefinite period of employment will not usually be a ‘temporary arrangement’ (Knight);

(c)‘usually based’ can include a camp site or accommodation provided by an employer (Knight at [83]).  Where a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so. In considering where a worker is ‘usually based’, regard may be had to the following factors, though no one factor will be decisive: the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, the location from where the worker’s wages are paid, and

(d)an employer’s ‘principal place of business’ is the most important or main place where it conducts the main part or majority of its business (Knight at [66]).  It will not necessarily be the same as its principal place of business registered with ASIC.”[20]

[30] Applying these principles, there was no State or no one State, where the worker habitually or customarily worked in her employment with the respondent employer in a regular manner.  She worked for the employer in Queensland part of the time and in New South Wales part of the time.  The “usually works” test did not provide an answer.[21]

Avon Products Pty Ltd v Falls

[31] The Court of Appeal of the Australian Capital Territory was required to decide whether for the purposes of the Workers’ Compensation Act 1951 (ACT) the Australian Capital Territory was “the Territory or State” with which the employment of the respondent was connected when she worked for her employer, Avon Products Pty Ltd.[22] It marketed cosmetics and other goods and the respondent’s employment as a District Sales Manager made her responsible for a large number of agents working in the Canberra region.  Most of the respondent’s working time was spent in the ACT supervising her agents, but a significant proportion of her time was spent on record-keeping and other administrative work which she did mainly at her home in New South Wales.  In considering the relevant ACT provision (which is mirrored in s 9AA of the NSW Act) the Court of Appeal observed that the section set up a process for determining the State or Territory with which the worker’s employment is connected and provided three different tests to be applied in determining that connection.  It stated:

“The tests are not, however, applied together.  Rather, if the first test provides an answer, then that is the end of the matter, but if not, the next test is applied and failing an answer emerging from that test, the third test determines the State or Territory of connection. This approach is significant, because it means that in applying each of the first two tests, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test.  If there is no clear answer, it is necessary to move on to the next test.”[23]

The first task was to consider whether the question posed by s 36B(3)(a) of the ACT Act could be answered “by identifying one State or Territory in which [the respondent] ‘usually worked’.”[24]  The respondent in that case usually worked in the Australian Capital Territory and she also usually worked in New South Wales.[25]  As no single Territory or State was identified by s 36B(3)(a) of the ACT Act, the Court was required by s 36B(3)(b) to attempt to identify where the respondent was “usually based for the purposes of her employment”.  I shall return to that issue in discussing the meaning of “usually based”.

Conclusion about the meaning of “usually works”

[32] The authorities which I have discussed apply the ordinary meaning of “usually” in its statutory context and conclude that the expression “usually works” means the place where the worker habitually or customarily works, or works in a regular manner.  The determination of the State in which the worker “usually works” in that employment is not determined by deciding the State in which the worker spends the majority of his or her work time.  The time spent in any particular State is still relevant.  It is possible that a worker usually works in more than one State.  The subsection does not involve a mathematical test.  There is no fixed percentage of time spent working, above which a worker is taken to usually work in a State.  It is possible to imagine clear cases in which the worker’s presence in a State is fortuitous, fleeting, uncommon or sufficiently unusual that one can easily conclude that the worker does not usually work in the relevant employment in that State.  Other cases may be more finely balanced.

[33] The relevant provisions make specific provision to not regard “any temporary arrangement under which the worker works in a State for a period of not longer than six months” in deciding whether a worker usually works in a State. [26]   Leaving aside such a temporary arrangement,[27] an occasional, even regular attendance in another State for training or attendance at a meeting may not constitute a sufficient connection.[28]  In such a case the worker’s occasional presence in a State for work-related purposes may mean that he or she does not “usually work” in that State.

[34] The authorities illustrate that the determination of whether there is a State in which the worker “usually works” in that employment depends upon the circumstances of the particular employment.  The fact that a worker’s time in employment is predominantly spent in one State does not necessarily mean that the State is the only State in which the worker “usually works”.  The worker will usually work in more than one State if the worker habitually or customarily works in a second State.  In such a case there will be no one State identified as being “the State in which the worker usually works in that employment” and the inquiry will turn to determining the State in which the worker is “usually based” for the purposes of that employment.

The meaning of “usually based”

[35] The term “usually based” was considered in Tamboritha Consultants Pty Ltd v Knight.[29]  Commissioner Herron referred to the Shorter Oxford English Dictionary definition of “base” as a “town, camp, harbour, airfield, etc., from which (esp. military) operations are conducted and where stores and supporting facilities are concentrated; a centre of operations, a headquarters.”[30]

[36] The test is where the worker is usually based “for the purposes of that employment”, and this may not be the same place in which a majority of the worker’s time is spent each day.  I respectfully agree with the statement in Martin v R G Hibbens Pty Ltd that where “a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so.”[31]  I also agree with the other observations in that case, which I have quoted in [29] above, about the factors that may be taken into account in considering where a worker is usually based.  I add that the place in which the worker’s employer is based may not be the same place in which the worker is based for the purposes of that employment.  The place in which the employer chooses to base certain operations for the purpose of administering the contract of employment, for example, for administering payroll, may have little to do with the place at which the employee is based for the purposes of that employment.  The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.

[37] In Avon Products Pty Ltd v Falls the Court of Appeal contemplated that it might be said that while working in her sales district in the ACT, the respondent’s vehicle was her base.[32]  The Court continued:

“What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate.”[33]

[38] The authorities which have been required to consider the meaning of “usually based” in the same or similar statutory contexts have adopted the ordinary meaning of “usually” and “base”.  I agree with this approach.  The determination in those cases of the factual question of where a worker was usually based for the purposes of his or her employment was dependent on the facts of the case, and little is to be gained by detailing those matters.

[39] In the facts of the present case, the place at which the applicant started and finished work each day has an obvious relevance.  So too is the place to which he returned to collect products, and the place at which the vehicle he used for the purposes of his employment was based.  The place at which he planned his daily runs and the place at which he received directions about the work he was to undertake by way of delivering products also are relevant in determining where he was “usually based”.  The place at which he worked whilst awaiting delivery jobs is also relevant in determining where he was “usually based”.  Whilst regard must be had to these and other facts, none may be decisive in determining where the applicant was “usually based”. 

[40] It may be inappropriate to place undue weight upon the place at which the worker starts and finishes each working day. During argument I ventured the hypothetical example of a taxi driver who collects a cab from his employer’s yard just inside New South Wales and then spends almost 12 hours in providing taxi services on the Gold Coast, following which he returns the cab to the yard where it is collected by a new driver who commences another 12 hour shift, driving the licensed taxi in Queensland.  In such a case the worker spends 10 minutes out of each 12 hour shift in New South Wales, being the State in which his work starts and finishes each day.  He collects the vehicle in New South Wales and returns it there.  But in such a case the worker might not be “usually based” in New South Wales for the purpose of his employment as a taxi driver.  His vehicle may be his base or he may have no base or at least, no usual base.  In other cases, for example an airline pilot or a bus driver, the organisation of their employment and their own or their employer’s description of their base may permit a conclusion to be drawn that there is a State in which the worker is “usually based for the purpose of that employment”.  Hanns v Greyhound Pioneer Australia Ltd is such a case in which it was common ground that the worker’s “base” was Canberra.

[41] In such a case, the one place in which the worker is “based” for the purpose of employment may be a place at which he or she spends a fairly small percentage of a normal working day.

[42] The statute contemplates that there may be cases in which there is no State or no one State in which the worker is usually based for the purposes of his or her employment.  In that event, the cascading test requires consideration of the State in which the employer’s principal place of business in Australia is located.

[43]  Depending upon the facts of a particular case, a worker may have no “base” for the purpose of his or her employment, even in a case in which he or she starts and finishes work each day in the same place.  If, however, a base or bases are identified, then the question turns to whether a particular base is the place at which the worker is “usually based” for the purpose of that employment.  The requirement that the worker is “usually” based involves consideration of whether the worker is customarily, commonly or habitually based in that place.

Facts

[44] In deciding the State or States in which the applicant usually worked regard must be had to his work history.  But work for Reece which is remote in time from the period of months leading up to the incident has less bearing on the issue than his work during that period.  I am not concerned to take a snapshot, particularly on the day of the incident, which may be unrepresentative of his usual work in the weeks, months and years that preceded it.

[45] The applicant commenced employment with Reece on or about 25 June 2007.  The position to which he was appointed at the time was a dual one, as a driver and as a storeperson.  It was anticipated at the time that the position would involve about 70 per cent driving and about 30 per cent warehouse duties.  The applicant’s appointment was approved by Reece’s State Manager – Queensland.  The applicant’s immediate superior was the Warehouse Manager at the Tweed Heads warehouse, which formed part of Reece’s Queensland organisation.  The Tweed Heads branch and the applicant worked according to Queensland time, rather than Australian Eastern Daylight Saving time.  The applicant took all Queensland public holidays and was not given New South Wales public holidays. 

[46] Reece operated a stock management and ordering system.  Some aspects of the system changed during the period that the applicant was employed prior to the incident.  Reece employed a number of sales representatives in its Brisbane office.  Customers would order products.  A customer’s order would be entered into the system, and copies of orders would be generated and printed on a computer at the Tweed Heads Onsite branch.  The number of orders declined after the global financial crisis and before the incident. Depending upon the number of deliveries that had to be made on a particular day, orders would be sorted into North, South and West, and at other times they would be sorted North and South, meaning North and South of the New South WalesQueensland border.  There were three trucks based at the Tweed Heads branch, each having the same capacity, as well as a utility vehicle for smaller deliveries.  If a driver, such as the applicant, was allocated a run then it would be for the driver to organise the most efficient sequence of deliveries on that run. 

[47] In 2008 the applicant started working primarily in the warehouse for a substantial period, and undertook little driving.  After that he reverted to being a delivery driver.  The applicant thought that the period when he undertook predominantly warehouse duties was for several months.  His superior, Mr Cuddeford, thought that the applicant started driving trucks again regularly in about late 2008.  Some employment records indicate that he worked in an on site position between 30 May 2008 and 30 September 2009, but these may not be accurate.  There may have been some delay in updating them.  In any event, the applicant worked primarily as a delivery driver for at least several months prior to the incident on 5 May 2010, and this period may have been as long as 18 months if Mr Cuddeford’s recollection is correct about the date when the applicant started driving trucks again.

[48] The applicant would start work as early as 6 am, depending upon requirements.  He would go to the Tweed Heads warehouse and obtain instructions on what deliveries he had to make that day, unless the deliveries had been arranged the previous afternoon.  He would then make up a run sheet about the best way to complete the deliveries.  Goods would be loaded on to the truck that morning, if they had not been loaded the previous afternoon.  Early in his employment the applicant had a preference for undertaking the South run because of his familiarity with areas in Northern New South Wales.  However, as matters progressed the bulk of the deliveries undertaken by him were in Queensland.  This would involve deliveries on the Gold Coast and at places to the north and to the west of the Gold Coast.  A typical run would take him up to four hours “out west and four hours back”.  When he had completed his deliveries he would drive back to the Tweed Heads warehouse.  He would usually have his lunch while on the road and arrive back at about 3.30 pm or 4 pm.  Sometimes he would get back earlier and have lunch at the warehouse with other staff.  But he thought that this happened only about 10 times during the time that he worked as a driver.

[49] During the period when there was high demand in the building industry the applicant might make 20 or even 30 deliveries in a day and his run sheets would be two or three pages long.  In the period leading up to the incident there was a downturn in the housing market.  This affected the building industry both north and south of the border.  Some workers at the Tweed Heads warehouse were offered voluntary redundancies.  Other drivers were employed on a casual basis.  The applicant remained a permanent employee, and gave evidence that he did most of the deliveries.  His oral evidence went so far as to say that he was doing “all the deliveries”, but this overstated matters somewhat.  His manager, Mr Cuddeford, explained that the applicant would do most of the deliveries in 2009 and in the period up to May 2010.  He could not recall if there was another permanent driver at the time.  Casuals were employed and they generally were given a shorter run so as to contain costs.  Some days no casual drivers would be employed. 

[50] During the period leading up to the incident, deliveries from the Tweed Heads Onsite warehouse extended to Springfield Lakes, which is south-west of Brisbane.  Mr Cuddeford confirmed the applicant’s evidence that the Springfield Lakes development generated a large number of deliveries.  Mr Cuddeford would arrange for the applicant to make those deliveries and other deliveries on the way.  He thought that the applicant would do this run two to three days a week.  Mr Cuddeford could remember the applicant “going south a little bit”.  The applicant recalls going south on occasions which he described as a more relaxing run.  However, during the relevant period he said that he was “getting flogged with work” and most of his deliveries were in Queensland.  Still, he accepted that there was “nothing unusual” about his heading south to Lismore.  He estimated that he was probably doing “easy 70, 80% into Queensland”, with Springfield Lakes being the place that generated most of the deliveries.  The day of the incident was not a normal day.  There were only six deliveries with three in Queensland and three in New South Wales.

[51] The applicant accepted that during this period when he would principally be making deliveries in Queensland, he would start work at the Tweed Heads branch each day and return there at the end of the day.  He accepted that Tweed Heads was where he was based. 

[52] The evidence given by the applicant and by Mr Cuddeford about the runs which the applicant made and the percentage of his time spent making deliveries in Queensland was given without the assistance of run sheets and other documents that Reece generated.  I found their evidence honest and generally reliable.  The applicant’s oral evidence had a tendency to emphasise the volume of his work generated in Queensland, particularly deliveries to Springfield Lakes.  However, I have no reason to not accept his evidence that he was practically “on the road all day”, averaging something like 1,200 kilometres a week and that at least 70 per cent or 80 per cent of his deliveries were into Queensland.  Mr Cuddeford acknowledged that although there was a South run, the North run predominated in terms of deliveries.  Towards the end of the period ending in May 2010 deliveries requiring a South run were “slowing down”.  Some days there would be no South run.  Some days there would be no North run.  Most days, however, there would be deliveries into both Queensland and New South Wales.  Sometimes the North run and the South run were combined into one run.

[53] If, as the applicant says, in the period leading up to the incident he was doing “all the runs” then he would have been doing South runs as well as North runs.  I interpret his evidence as meaning that on the days when there were no casual drivers to supplement him, he would undertake all the deliveries, both north and south.  Most of the Tweed Heads branch’s deliveries were in Queensland, and the applicant was given that work.

In which State or States did the applicant usually work?

[54] The evidence indisputably establishes that the applicant usually worked in Queensland.  The issue is whether he also usually worked in New South Wales.  WorkCover submits that he did on the basis that he attended the Tweed Heads branch each day, planned his deliveries from there and returned there at the end of each day.  He also worked full time in the warehouse during the earlier period.  In the lengthy period after that, during which he was working primarily as a delivery driver, he spent a significant proportion of his work time in Queensland.  However, WorkCover submits that this is not the test and that he usually worked in New South Wales because of the duties he performed at the Tweed Heads warehouse each day and because of the deliveries that he commonly made to places in New South Wales

[55] Even accepting the applicant’s evidence about the high proportion of time that he spent making deliveries in Queensland, a significant number of deliveries were made by him in New South Wales, and the applicant accepted that it was not unusual for him to make deliveries in New South Wales.

[56] The applicant submits that Queensland is “the State” in which he usually worked.  He relies upon the uncontested evidence about how the Tweed Heads office was administratively part of the Queensland operation, even to the extent of the Tweed Heads warehouse having the same telephone number as the Brisbane office to which it reported and from which it received instructions.  The fact that he was treated as a Queensland employee for the purpose of public holidays, that his employment was administered principally from the Queensland branch and that for substantial periods his wages were costed to that branch is relevant. [34]  It tends to prove that he usually worked in Queensland.  But it does not mean that he did not also usually work in New South Wales.

[57] The applicant’s counsel accepted that the time spent in each State is not itself determinative of the place in which an employee “usually works”.  However, the fact that the applicant made the overwhelming majority of his deliveries in Queensland was important.  The applicant might have attended in Tweed Heads each day to start and finish work. But each day he drove predominantly in Queensland for the purpose of Reece’s Onsite branch which was part of its Queensland operation.  The fact that he sometimes worked in New South Wales was submitted to not preclude a finding that the State in which he usually worked was Queensland

[58] I conclude that the applicant usually worked in Queensland, and also usually worked in New South Wales.  As to the latter, his work in New South Wales was customary, common and frequent.  It was not unusual since New South Wales was the place he would attend each day for the purpose of planning his deliveries, loading his truck and receiving instructions.  He would return there each day.  Deliveries by him in New South Wales were a common, indeed regular, feature of his work, including on days when he was the only driver.  The fact that in percentage terms he spent much more time in Queensland making deliveries than he did in New South Wales does not mean that he did not usually work in New South Wales.  There was nothing unusual about his making deliveries in New South Wales.  In fact, it was usual for him to do so.

In which State or States was the applicant usually based?

[59] Because there was no one State in which the applicant usually worked in his employment, it is necessary to consider the State in which he was “usually based for the purposes of that employment”.

[60] The organisation of the Tweed Heads Onsite warehouse as part of Reece’s Queensland operations, and the fact that the applicant’s employment was mainly administered through and costed to the Queensland branch is relevant to the State in which he was usually based for the purpose of his employment.  So too are some of the other facts which I have mentioned, including the fact that he took Queensland public holidays, not New South Wales public holidays.  But the present issue is where the applicant was based for the purpose of his employment, not where the branch out of which he operated was organised administratively by Reece.  Also, the present issue is not to determine the State in which the applicant was physically located for most of his work time.  The place in which a worker is “based” for the purpose of employment is different to the various places to which the worker might be required to go in the course of that employment.  Authorities like Hanns v Greyhound Pioneer Australia Ltd illustrate that point, albeit in a different factual context.

[61] Tweed Heads was the place where the applicant turned up for work each morning, received his instructions, loaded his truck, reported to and returned to at the end of each work day.  Tweed Heads was the place at which the truck he used was based.  It was the centre out of which he operated, and the fact that he spent, on average, a large part of his working day driving on roads in Queensland does not alter this fact.  The Tweed Heads warehouse was his base.  It was his usual base. 

[62] Given the evidence which supports the conclusion that the applicant was usually based in New South Wales for the purpose of his employment, it is unnecessary to place too much weight on the applicant’s final answer under cross-examination, in which he accepted that Tweed Heads was where he was based.  However, this answer reflected the facts.

[63] I conclude that New South Wales was the State in which the applicant was usually based for the purposes of his employment.

Conclusion and orders

[64] I am asked to determine the State with which the applicant’s employment was connected pursuant to the provisions of s 113 of the Queensland Act.  The applicant usually worked in that employment in Queensland.  He also usually worked in that employment in New South Wales.  Because no one State was the State in which he usually worked in that employment, the State with which his employment was connected is determined by s 113(3)(b) of the Queensland Act.  This is the State in which he was usually based for the purposes of that employment.  The applicant was usually based for the purpose of his employment in New South Wales.  Accordingly, I decline to declare that Queensland was the State with which the applicant’s employment was connected pursuant to s 113 of the Queensland Act. 

[65] Although the amended originating application sought a declaration that s 10(2)(b) of the Queensland Act did not apply to the applicant’s workers’ compensation claim, the parties agree that paragraph 2 of the amended originating application should refer to damages rather than workers’ compensation and that the purpose of the application is to determine whether the applicant has an entitlement to common law “damages” in Queensland. 

[66] For the reasons that have been given, this issue directs attention to s 9AA of the NSW Act.  It poses the same factual issues that I have addressed in the context of s 113 of the Queensland Act.  I find that the applicant’s employment was connected with New South Wales for the purpose of the NSW Act.  As a consequence, WorkCover Queensland is not obliged to indemnify for any liability arising out of the applicant’s Notice of Claim for Damages dated 18 July 2012. 

[67] I raised the fact that neither the applicant’s former employer nor the insurer under the NSW Act were joined as parties to the application.  The issue was raised with the applicant’s solicitors in December 2012 by WorkCover Queensland’s solicitors.  The applicant’s solicitors did not take steps to serve either Reece or the New South Wales insurer.  Reece knew of the application.  The applicant’s position is that his injury did not result in a sufficient impairment to reach the threshold required to claim damages under the NSW Act.  In those circumstances, the applicant has indicated his preparedness to accept the consequences of his failure to serve other parties, including the fact that my findings do not bind the New South Wales insurer.

[68] WorkCover Queensland does not seek declarations in its favour.

[69] I will grant leave to further amend the originating application by deleting the words “workers’ compensation claim” and inserting in lieu thereof “claim for damages”.  The appropriate order in the circumstances is that the application is dismissed.

Footnotes

[1] Reece destroyed hard copies of the applicant’s run sheets, and was not required to produce any other documents that would confirm or contradict the percentage that the applicant gave.

[2] Reference is to legislation as it applied as at 5 May 2010, unless otherwise stated.

[3] These provisions were considered in RHG Home Loans Pty Ltd v Employers Mutual New South Wales Ltd [2012] 1 Qd R 262.

[4] See the dictionary definitions in Hanns v Greyhound Pioneer Australia Ltd (2006) 196 FLR 361 at 368 [21].

[5] Onion, C.T., The Shorter Oxford English Dictionary 3rd ed Oxford University Press, New York, 1973 at 2443.

[6] See the second reading speech in the New South Wales Legislative Council on 4 December 2002 in relation to the enactment of s 9AA into the NSW Act, quoted in Martin v R J Hibbens Pty Ltd (2010) 8 DDCR 535 at 543 [39]. Section 113 of the Queensland Act was intended to embody the interstate arrangement principles entered into by Queensland. See Explanatory Memorandum, Workers’ Compensation and Rehabilitation Bill 2003 (Qld) at 32.

[7] Ibid.

[8] Hanns v Greyhound Pioneer Australia Ltd (supra) at 369 [27].

[9] Martin v R J Hibbens Pty Ltd (supra) at 541 [30].

[10] Hanns v Greyhound Pioneer Australia Ltd (supra) at 368 [22].

[11] Ibid at 369 [25].

[12] Ibid at 369 [26].

[13] Ibid at 369 [27].

[14] (2008) 58 SR (WA) 291.

[15] cf s 9AA(6) of the NSW Act and s 113(6) of the Queensland Act which require regard to the worker’s work history with the employer and the intention of the worker and employer.

[16] Tamboritha Consultants Pty Ltd v Knight (supra) at 309 [76].

[17] Ibid.

[18] Ibid at 309-310 [77].

[19] At the time of the decision Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34 had not been decided on appeal and Deputy President Roche referred to Avon Products Pty Ltd v Falls (2009) 236 FLR 212 which was reversed on appeal.

[20] Martin v R J Hibbens Pty Ltd (supra) at 547 [60].

[21] Martin v R J Hibbens Pty Ltd (supra) at 548 [62].

[22] Supra.

[23] Ibid at 37 [10].

[24] Ibid at 39-40 [28].

[25] Ibid at 39-40 [28] and [31].

[26] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 113(7); Workers’ Compensation Act 1987 (NSW), s 9AA(6).

[27] As to which see Weir Services Australia Pty Ltd v Allianz Australia Insurance Ltd [2013] NSWSC 26.

[28] See for example RHG Home Loans Pty Ltd v Employers Mutual New South Wales Ltd (supra).

[29] Supra at 310-311 [79] – [90].

[30] Ibid at 310 [81].

[31] Supra at 547 [60].

[32] Supra at 40 [32].

[33] Ibid.

[34] Records indicate that the applicant’s wages were costed by Reece to the Queensland office until January 2010, and thereafter were costed to New South Wales.

Close

Editorial Notes

  • Published Case Name:

    Ferguson v WorkCover Queensland

  • Shortened Case Name:

    Ferguson v WorkCover Queensland

  • MNC:

    [2013] QSC 78

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    27 Mar 2013

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status