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McClymont v Egerton QCATA 161
McClymont v Egerton  QCATA 161
James Roy Jeffrey McClymont
On the papers
Senior Member Stilgoe OAM
9 November 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – TRAFFIC ACCIDENT – where employee damaged employer’s bus – where employer self-insured property damage to bus – where employee not aware of self-insurance – where employer claimed cost of repair from employer – whether tribunal had jurisdiction to consider claim – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – EMPLOYMENT CONTRACT – where employee engaged to drop off and pick up passengers – where 6 hour wait between drop off and pick up – where employee went home during waiting time – where accident occurred when returning from home – whether accident occurred in course of employment
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12(4)(d)
Rayner v Mitchell (1887) 2 CPD 357
Storey v Ashton (1869) LR 4 QB 476
Joel v Morison (1834) 172 All ER 1338
Shirlaw v. Southern Foundries (1926) Ltd (1939) 2 KB 206
Lister v Romford Ice & Cold Storage Co.  AC 555
BP Refinery (Westernport) Ltd v Shire of Hastings (1977) 180 CLR 266
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Koehler v Cerebos (2005) CLR 44
AR Griffiths and Son Pty Ltd v Richards QCA 417
Wylie v The ANI Corporation Ltd  QCA 314
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
Rowell v Alexander Mackie College of Advanced Education (1988) 7 MVR 157
Chaplin v Dunstan Ltd  SASR 245
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- James McClymont was employed as a bus driver for William Egerton, trading as Koala Blue Tours. Mr McClymont hit another car while driving a Koala Blue bus. Mr Egerton filed a claim in the tribunal against Mr McClymont for the cost of repairs to the bus. The tribunal ordered Mr McClymont pay Mr Egerton $7,823, which was the cost of repairs.
- Mr McClymont wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Mr McClymont challenges the tribunal’s jurisdiction to hear the claim on three grounds. If the appeal tribunal finds that the tribunal did have jurisdiction, Mr McClymont has nine further grounds of appeal, most of which relate to the nature of the employment relationship and the application of the principle in Lister v Romford Ice & Cold Storage Co..
- Mr McClymont wants to file fresh evidence which, he says, is a complete analysis of the employment relationship he had with Mr Egerton. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- Mr McClymont submits that the fresh evidence is necessary to respond to evidence given by Mr Harding at the hearing. Mr Harding’s evidence was short. He told the tribunal his understanding of a “charter”. Mr McClymont had the opportunity to ask Mr Harding questions, but he decided not to do so. The tribunal did not refer to Mr Harding’s evidence in its decision.
- An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. The affidavit seems to be simply an amplification of the evidence Mr McClymont gave at the hearing. I am not persuaded that the affidavit adds anything new. If it is, in fact, fresh evidence, Mr McClymont has not explained why he was unable to provide this evidence at the hearing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the tribunal.
Did the tribunal have jurisdiction to hear Mr Egerton’s claim?
- Mr Egerton filed an application for minor debt. Mr McClymont submits that, because the claim is a minor debt, the principles in Ford v Thexton apply. The appeal tribunal in Ford v Thexton was considering a claim for wages, accrued annual leave and payment in lieu of notice. The only basis for the tribunal’s jurisdiction in Mr Ford’s claim was if it was a minor debt, within the meaning of s 12(4)(a) of the QCAT Act. Further, it was important to establish that Mr Ford’s claim was not one that should properly have been brought under the Fair Work regime.
- The facts in this case are quite different. Ford v Thexton does not assist me in determining whether the tribunal erred in finding it had jurisdiction.
- The fact that Mr Egerton filed a minor debt claim is not fatal to the application and, importantly, does not mean that the tribunal can only consider the claim if it is a minor debt. The tribunal has an obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick. The tribunal has power to waive compliance with a procedural requirement of the QCAT Act. It has power to do whatever is necessary for the speedy and fair conduct of a proceeding. If the tribunal otherwise has jurisdiction to hear a dispute, it will not dismiss a claim simply because the party used a wrong form.
- Mr McClymont submits that, by referring to the involvement of a vehicle, the tribunal identified the “fortuitous development” as the source of its entitlement to undertake a detailed analysis of the employment relationship. Mr McClymont submits that the involvement of a vehicle is “fortuitous” because if any other tool of trade had been involved, the tribunal would not have jurisdiction.
- It is true that, if Mr McClymont had damaged a lathe, or a computer, the tribunal would not have jurisdiction. But he damaged a vehicle. Section 12(4)(d) allows a claim by a person who incurs loss because of damage to property caused by, or arising out of, the use of a vehicle. Mr Egerton’s claim appears to be within the jurisdiction of the tribunal, whether the involvement of a vehicle was “fortuitous” or not.
- Mr McClymont then suggests that a claim under s 12(4)(d) is limited to a claim where a person’s use of a vehicle has damaged another person’s property, which is not the vehicle in question.
- The QCAT Act does not define the word “property”. It must, therefore, take its ordinary meaning. A vehicle is property and there is nothing in the Act to suggest that a claim under s 12(4)(d) cannot be a claim for damage to a vehicle, Indeed, the tribunal regularly hears and determines what is colloquially known as “crash and bash” claims – motor vehicle accidents involving property damage. The tribunal does have jurisdiction to consider a claim damage to a vehicle caused by, or arising out of, the use of that vehicle.
- Mr McClymont further submits that the tribunal cannot have jurisdiction under s 12(4)(d) if he is then precluded from relying on defences under the Australian Consumer Law.
- The tribunal held that Mr McClymont was not a consumer, therefore the provisions of the Australian Consumer Law did not assist Mr McClymont. The tribunal held that McClymont was not entitled to rely on the provisions relating to misleading and deceptive conduct.
- In this statement, the tribunal was in error. Section 18 of the Australian Consumer Law is not limited to claims by consumers. It is a general protection available if a person, in trade or commerce, engaged in conduct that was misleading or deceptive.
- The tribunal’s error does not mean that the tribunal did not have jurisdiction. It may, however, affect the correctness of the tribunal’s decision to order Mr McClymont pay Mr Egerton.
The employment contract
Is there an implied term in the employment contract that an employee owes a duty to take reasonable care of an employer’s property and in the performance of his duty?
- The tribunal applied the principle in Lister v Romford Ice to find that the contract of employment contained an implied term that Mr McClymont owed a duty to take reasonable care of Mr Egerton’s property and in the performance of his task.
- Mr McClymont submits that Lister v Romford Ice is no longer good law. He referred the tribunal to the discussion by McMurdo P in Wylie v The ANI Corporation Ltd. Her Honour found that there was an implied term that an employee take reasonable care in the performance of his duties. She also stated that she was not convinced that Lister v Romford Ice accurately reflected the law in Queensland in the 21st century. That observation is consistent with the comments of Samuels JA in Rowell v Alexander Mackie College of Advanced Education, and Fitzgerald P in AR Griffiths and Son Pty Ltd v Richards (in a minority decision).
- Although there are various comments that Lister v Romford Ice is not good law for the 21st century, no majority Court decision has definitively found that to be the case. Therefore, it is not for this tribunal to break new ground. I am not persuaded that the tribunal below erred in applying the principle in Lister v Romford Ice.
- Mr McClymont also submits that the principle in Lister v Romford Ice is inconsistent with s 3 of the Fair Work Act 2009 (Cth) which states that the object of the Act is to provide a balanced framework for cooperative and productive workplace relations… That might be true but until Queensland legislation specifically removes a Common Law principle, or the Court of Appeal takes a different view, the principle remains good law.
Was there a corresponding duty imposed on Mr Egerton to either insure the vehicle or warn Mr McClymont that the vehicle was not insured?
- It is not true to say that Mr Egerton did not insure his vehicles. He chose to self-insure property damage to this particular vehicle; that is, he calculated the risk, put aside the necessary funds to cover that risk, insured his own vehicles and administered any claims. Otherwise, his vehicles appear to have been fully insured.
- The tribunal found that Mr Egerton did not have a duty to disclose the fact of self-insurance. The tribunal found that an intending employer has no duty of care to a potential employee and, therefore, there was no duty to inform Mr McClymont that he would be driving an uninsured vehicle.
- Mr McClymont submits that the tribunal should imply a term into the employment contract that Mr Egerton was to advise Mr McClymont of the insurance position. He says that the term is necessary to give business efficacy to the contract. A court will imply a term into a contract to give the contract business efficacy. A court will imply a term if it:
is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course.”
- The High Court has already held that an employer has a duty to act fairly and reasonably to its employees. The Court of Appeal in New South Wales has held that, where a person is required to drive the employer’s vehicle, there is an implied term in the contract of employment that the employer would maintain an insurance policy in standard form covering both the employer’s and the employee’s liability for damages caused by negligent driving and that the employer would exhaust its rights under the policy before seeking recovery from the employee.
- Mr Egerton submits that such a term is contrary to the principle in Lister v Romford Ice, a fact that the Court of Appeal in New South Wales acknowledged.
- Because this contract of employment was silent about insurance, there had to be some term implied. The term was either that the employee was covered by the employer’s insurance, or he was not. A term that an employee is covered by the employer’s insurance falls into the “of course” test and can be implied, particularly where the task for which the employee is engaged is to drive vehicles. By contrast, the fact that an employer is self-insuring and, asking the employee to assume an additional risk, does not fall within the “of course” test. The term, therefore, cannot be implied into a contract of employment.
- I disagree with the tribunal’s findings that Mr Egerton had no duty to inform Mr McClymont that the vehicle was self-insured and that Mr McClymont would be liable for any property damage to the bus. Leave to appeal should be granted.
- I do not need to consider whether Mr Egerton’s failure to disclose the fact of self-insurance was misleading and deceptive conduct under the Australian Consumer Law.
- For the reasons that follow, however, the tribunal’s error does not mean that Mr McClymont’s appeal is successful.
The Employer’s Liability Act 1991 (NSW)
- Mr McClymont says that, as he was required to drive in New South Wales, there is sufficient jurisdiction to trigger s 66 of the Employer’s Liability Act 1991 (NSW).
- Mr McClymont was employed by a company operating in Queensland. The accident the subject of Mr Egerton’s claim occurred in Queensland. The bus was registered in Queensland. There is nothing to connect this case with New South Wales.
- There is no substance to this ground of appeal.
The change in the nature of the employment contract
- Mr McClymont submits that, if Mr Egerton did not have an obligation to inform him about the fact of self-insurance at the start of his employment, the change in the working arrangements did create an obligation to do so.
- I have found that Mr Egerton did have such a duty. Therefore, I do not need to consider this ground of appeal.
The reference to “charter” in the reasons for decision
- Mr McClymont takes issue with the tribunal’s use of the word “charter” when describing Mr McClymont’s work. He submits that the use of the word fails to take into account important considerations in the employment contract.
- As I read the tribunal decision, the reference to “charter” was a description of the relationship between Mr Egerton and the people Mr McClymont was driving. I do not consider that the tribunal erred in the use of the word “charter” or in its understanding of that part of the employment relationship.
Was Mr McClymont acting in the course of his employment?
- Mr Egerton has never disputed that, if Mr McClymont was acting within the scope of his employment, this dispute would not have arisen. Mr Egerton submits that Mr McClymont was off on a “frolic” of his own. The tribunal therefore had to decide whether Mr McClymont was acting within the course of his employment.
- There is no dispute that, on the day in question, Mr McClymont collected passengers and drove them to the Nerang Football Club at about 11.30 am. The passengers asked him to collect them at 6.20 pm. Instead of staying at the club with the bus, Mr McClymont drove home. The collision occurred when Mr McClymont was driving from his home back to the club.
- Mr McClymont submitted that driving to and from home was in the course of his employment. He told the tribunal that Mr Egerton said he could go home between drop-off and pick up. Mr Egerton did not agree that he gave Mr McClymont permission to go home between drop-off and pick up.
- Mr McClymont submits to the tribunal that a requirement to stay with the bus for 5 or 6 hours was “absurd”. Whether or not the requirement to wait at a venue is absurd is not the point. The question for the tribunal was whether waiting was part of the employment contract. The tribunal found that it was.
- The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case. The evidence can support a finding that Mr McClymont was required to wait at the venue and I can find no compelling reason to come to a contrary view.
- Mr McClymont also submitted that a requirement to stay with the bus does not address health and safety issues such as the driver’s access to amenities. Mr McClymont’s submission is not a valid argument in this particular case. He was at a sporting club. The club must have had toilets. It probably had food service. Even if it had neither of these facilities, Mr McClymont does not explain why he was therefore entitled to drive home, rather than to the nearest facility.
- Whether or not a detour is still within an employee’s course of employment has been the subject of many court decisions. In his submissions, through the use of “frolic”, Mr Egerton has echoed the classic statement:
If he was going out of his way, against his master’s implied commends when driving on his master’s business, he will make his master liable, but if he was going on a frolic of his own, without being on his master’s business, the master will not be liable.
- From this simple statement, there are degrees of detour. A short deviation, to get a drink after a long day’s work, was held to be within the course of employment. A driver who deviated from the route home for a private purpose, and taking a different route, was not on a journey within the course of employment.
- Mr McClymont might argue that, even if Mr Egerton did not authorise his trip home, the accident occurred when he was returning to collect the passengers and, therefore, within the scope of his employment. The courts have considered a similar argument and found that the resumption of the journey was not enough to make it within the scope of employment. I agree with that approach. As Mr Egerton pointed out, if Mr McClymont had not gone home, he would not have been 20 km from his pickup address.
- I am satisfied that Mr McClymont was not acting within the course of his employment. Mr McClymont therefore bore the risk of damage to the bus, even if Mr Egerton had insurance in place.
- The tribunal found Mr McClymont was negligent in his driving. The evidence can support that finding. In these unique circumstances, the tribunal’s finding that Mr McClymont is liable to Mr Egerton can be supported.
- Leave to appeal is granted but the appeal is dismissed.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
  AC 555.
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404 at 408.
 Transcript page1-14, lines 15 – 18.
  QCATA 180 at .
 QCAT Act s 3(b).
 QCAT Act s 61(1)(c).
 QCAT Act s 62(1).
  QCA 314.
 Supra at , .
 Supra at .
 (1988) 7 MVR 157 at 160.
 QCA 417.
 Transcript page 1-7, line 17.
 BP Refinery (Westernport) Ltd v Shire of Hastings (1977) 180 CLR 266 at 283.
 Shirlaw v. Southern Foundries (1926) Ltd (1939) 2 KB 206, at p. 227 per MacKinnon LJ.
 Koehler v Cerebos (2005) CLR 44 at .
 Rowell v Alexander Mackie College of Advanced Education supra.
 Transcript page 1-15 at lines 18 – 20.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Joel v Morison (1834) 172 All ER 1338 at 1339.
 Chaplin v Dunstan Ltd  SASR 245.
 Storey v Ashton (1869) LR 4 QB 476.
 Rayner v Mitchell (1887) 2 CPD 357.
 Transcript page 1-4, line 43 to page 1-5, line 3.
- Published Case Name:
McClymont v Egerton
- Shortened Case Name:
McClymont v Egerton
 QCATA 161
Senior Member Stilgoe OAM
09 Nov 2015