John Holland Constructions Pty Limited v Laszlo Jozsef Chordas Sc 1444 of 1985 Wc [1986] ACTSC 77 (19 August 1986)

SUPREME COURT OF THE ACT

JOHN HOLLAND CONSTRUCTIONS PTY. LIMITED v. LASZLO JOZSEF CHORDAS
S.C. 1444 of 1985
W.C. No. 52 of 1984
Worker's Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Worker's Compensation - Workmen's Compensation Ordinance 1951, s. 8 - worker injured when assaulted in a hotel - whether injury occurred whilst travelling - whether risk of accident materially increased - whether evidence of total incapacity.

Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 at p 557

Fillipone v. Abel Drainers Pty. Ltd. (1969) 14 FLR 456 at 462

Australian Coastal Shipping Commission v. Averell [1969] HCA 38; (1969) 122 CLR 348 at 351

Alice Springs Abattoirs Pty. Ltd. v. Finn (1983) 48 ALR 283

Entrad Tyres Pty. Ltd. v. Hollingsworth (1985) 62 ACTR 43

Larke Hoskins Pty. Ltd. v. Freeland (1969) 15 FLR 333

Maksymczuk v. Gillespie Brothers Pty. Ltd. [1957] HCA 89; (1957) 98 CLR 523

Scobie v. K.D. Welding Co. Pty. Ltd. [1959] HCA 65; (1959) 103 CLR 314

HEARING

CANBERRA
19:8:1986

ORDER

The appeal be dismissed.

The appellant to pay the respondent's costs.

DECISION

This is an appeal by an employer from the decision of a Magistrate sitting in the then Court of Petty Sessions in Canberra awarding compensation to a worker pursuant to the Workmen's Compensation Ordinance 1951.

2. The basic facts are not in dispute. The worker, Mr. Laszlo Jozsef Chordas, was employed as a mechanic in the employer's yard at Hume. He had some managerial responsibility for the mechanical staff. He lived with his wife and children at Holt. The employer provided him with a Ford Falcon utility which he was entitled to drive and did drive between his home and his place of employment. On the evening of Friday, 15 July 1983, after the other employees had gone home, Mr. Chordas worked on in the office until about 6 p.m. Then instead of driving straight home, he did what he normally did on Friday evenings. He drove to the Wellington Hotel to have a few drinks with other members of the company's staff. He arrived at the hotel at about 6.15 p.m. He joined in the activities with his colleagues in the bar for about an hour or an hour and a half and had drunk about three glasses of beer when he was assaulted by a person previously unknown to him. Mr. Chordas in no way provoked the assault. It is the injury resulting from the assault for which compensation was awarded.

3. The learned Magistrate found that Mr. Chordas had been injured as alleged and that he was not at his place of employment at the time of injury. Those findings are not disputed. The learned Magistrate went on to find that at the time of injury the worker "was on a journey to his home which had been interrupted by his diversion to the hotel", but that the worker had not "thereby materially increased the risk of injury". The two latter findings are subject to challenge by this appeal. It is submitted on behalf of the appellant employer that there was no evidence upon which the Magistrate was entitled to find that the applicant was at the time of his injury travelling within the meaning of that term as defined by the Ordinance, alternatively, that if the Magistrate was so entitled to find, there was no evidence upon which he was entitled to make the further finding that the worker by making his "diversion" to the hotel did not thereby materially increase the risk of injury.

4. S. 8 of the Ordinance is in the following terms:

"8.(1) Where personal injury by accident is caused to a

workman while he is travelling to or from
(a) his employment or any school in relation to
which sub-section (2) of the last preceding
section applies; or
(b) any place which it is necessary for him to
attend to obtain a medical certificate or to
receive medical treatment or compensation in
respect of a previous injury,
his employer shall, subject to this Ordinance, be
liable to pay compensation in accordance with this
Ordinance as if the accident were an accident arising
out of or in the course of his employment.
(2) In this section, "travelling" means travelling,
whether within or outside the Territory, by the
shortest convenient route for the journey but does not
include travelling during or after any substantial
interruption of the journey or any substantial
deviation from the route made for a reason
unconnected with the workman's employment, attendance
at the school or obtaining the certificate, treatment
or compensation, as the case may be, unless, in the
circumstances of any particular case, the nature,
extent, degree and content of the risk of accident was
not materially changed or increased by reason only of
any such interruption or deviation."

5. These provisions have been the subject of several decisions in this Court. Similar provisions in other legislation have resulted in a number of pronouncements in the High Court. Some of those pronouncements have been concerned particularly with the position of persons such as members of the armed forces whose place of abode and place of employment are not distinguishable. In any event it is clear that a worker is not entitled to succeed under the section unless he shows that the injury is caused while he is travelling to or from his employment. The term "travelling" is defined in reference to a "journey". The term "journey" is undefined. It has been said that s. 8 refers to a journey not by specifying the terminal points but by prescribing its character: Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 at p 557 per Kitto J. On the other hand it has been recognised that the journey contemplated by the section is a journey between identifiable points, with one terminal point being a place where the performance of the duties of employment await the worker, and the other terminal point being a place of abode: Wright's case at p 557 per Fullagar J., or possibly a place where the worker is so predominently concerned with his private affairs as contrasted with matters relating to his employment that the worker may be regarded as having thrown off not only his employment but also his travelling from it: Fillipone v. Abel Drainers Pty. Ltd. (1969) 14 FLR 456 at p 462 per Smithers J.

6. In Australian Coastal Shipping Commission v. Averell [1969] HCA 38; (1969) 122 CLR 348 at p 351 McTiernan, Kitto, Menzies JJ. said in a joint judgment that:

". . . . . a worker can only be said to be travelling
to or from his employment if there is "a real
connexion between the journey and the employment
in the sense that the immediate purpose of the
employee in making the journey must be either to
enter upon the duties which his employment imposes
upon him or to absent himself temporarily from
those duties", to use the language of Fullagar J.
in The Commonwealth v. Wright. What has been
found to be implicit in the section is the
necessity for a journey from a place of abode,
permanent or temporary, to a place where the
duties of employment are to be performed."

See also the judgment of a Full Court of the Federal Court of Australia in Alice Springs Abattoirs Pty. Ltd. v. Finn (1983) 48 ALR 283, and of Kelly J. in Entrad Tyres Pty. Ltd. v. Hollingsworth (1985) 62 ACTR 43.

7. It was argued on behalf of the employer that the worker had not proved that he had embarked upon a journey within the provisions of s. 8 because he could not show what his destination was. It was submitted that the evidence could not go to prove that the worker's destination was his place of abode because the evidence did not go beyond showing that upon his arrival at the hotel the worker's intention as to his movements was in a state of suspension, that he was undecided and would remain undecided for a couple of hours before he made a decision as to how he would occupy the remaining hours of the night. The choices were to drive home immediately, to ring his wife to come and get him and drive him home, or to stay on and go and have a meal with his friends. But in any event, in my view, the evidence did permit of a conclusion that sometime during the night the worker would go home. His place of abode was his destination when he set out from his employment and remained his destination at the time of his injury, regardless of the lack of any decision as to how he might eventually get there and as to how he might spend the time in the meanwhile.

8. An alternative submission on behalf of the employer was that, assuming that the worker had embarked upon a journey when he left his employment, his arrival at the hotel, far from constituting an interruption or a deviation from the journey, in reality brought the worker's journey to an end, that at that stage the worker had sufficiently abandoned the affairs of his employer and embarked upon his own private affairs that he was no longer on a journey as contemplated by s. 8. Accordingly, so it was submitted, if later in the evening the worker decided to go on home, or indeed to go anywhere, that involved not the resumption of the journey upon which he had embarked when he had left his employment but the undertaking of a new and different journey which could not be a journey within the section because it lacked as one of its terminal points a place sufficiently connected with the employment. The answer to this submission, I think, is that the purpose of the visit to the hotel was on the night in question, as it was on every other Friday night, to meet colleagues who were themselves not only employees of the company but employees at a middle management level with whom there would consciously, deliberately and inevitably be some discussion of company affairs. It is to be remembered that these meetings had been encouraged by the employer, a matter which was commented upon by the learned Magistrate in his reasons for judgment. Although the Magistrate did not specifically state that he accepted the evidence on that point, it was open for him to do so and lent support to the conclusion which, in my view, he was entitled to reach, namely, that the journey in relation to which the worker was travelling was a journey within the meaning of s. 8.

9. The second ground of appeal argued was that the Magistrate erred in finding that the worker had discharged the onus of proving that the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of the interruption of the deviation from the journey. There was no finding of fact by the Magistrate as to the degree of deviation from the shortest convenient route between Hume and Holt which the diversion to the Hotel Wellington involved. However it was common ground that the Magistrate was entitled to find that there had been a substantial interruption of the journey or a substantial deviation from the route and that the injury had occurred during that interruption or deviation. The onus was therefore cast upon the worker to prove that the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of such interruption or deviation: see Larke Hoskins Pty. Ltd. v. Freeland (1969) 15 FLR 333, Maksymczuk v. Gillespie Brothers Pty. Ltd. [1957] HCA 89; (1957) 98 CLR 523. However there is no need for any consideration of the presence or absence of a nexus between the increase in the risk of accident and the injury which in fact occurred: Scobie v. K.D. Welding Co. Pty. Ltd. [1959] HCA 65; (1959) 103 CLR 314. It was submitted on behalf of the employer that the worker could not succeed without calling evidence on this particular issue, but in my view it is clear that the worker is entitled to rely on inferences to be drawn on the whole of the evidence in the case. There was no evidence that the bar at the Wellington Hotel was a place where fights were likely to occur or that it attracted customers of a violent disposition. In a general sense the further the worker deviates from the route between his place of employment and his home, or the longer he spends in an interruption to the journey, or indeed the longer he takes to get from one place to the other, the greater is the risk of accident, but the question is whether the risk of accident had been increased, and materially increased, by reason only of the interruption or deviation. In my view it is the nature of the interruption or deviation that has to be considered and I see nothing in the circumstances of the present case which would have compelled the Magistrate to the conclusion that the worker had not discharged the onus. In any event, for the worker to fail because of interruption to the journey or deviation from the route, the interruption or deviation must be "made for a reason unconnected with the workman's employment". The Magistrate does not seem to have considered this requirement. In my view, for reasons to which I have already referred, the applicant's visit to the hotel could not be seen to have been for a reason unconnected with his employment.

10. Mr. Nock for the employer made the interesting point that he had not been able to find a reported decision in which a worker alleged injury during a substantial interruption to his journey in the sense that the accident occurred whilst he was at rest and not still in motion, that is to say that all the cases deal with situations where the worker was moving, either in a vehicle or walking. It was suggested then that the word "travelling" despite its statutory definition still had to be read in a common sense way and that a worker could not be said to be travelling whilst he was, as Mr. Chordas was, in a hotel for the purpose of a social gathering over a period of a couple of hours or so. However, I think that this submission does not overcome the problem or avoid the necessity of applying the statutory definition to a particular set of circumstances and that in any event in some contexts a person may still be considered to be travelling in a common sense sort of way whilst at rest: for instance, a person travelling by air from Australia to the United States would, I think, generally be considered to be travelling whilst spending an hour or two in an airport lounge in Hawaii and might even be considered to be travelling if he broke the flight by spending a night in a hotel in Hawaii.

11. The third ground of appeal was that it was not open to the Magistrate to find that the worker was totally incapacitated. The particulars of injury furnished were "blow to the right side of the face, blow to the back of the head and concussion" but the evidence included reference to depression and pain in the spine by Dr Danta, to a "post concussion syndrome" by Dr Mickleburgh, and complaints by the plaintiff of pains on both sides of the neck and the left shoulder. Dr Danta expressed the view that the plaintiff, like others who had remained out of work because of injury for more than two years, had become unemployable. Whilst there was no application to amend the particulars, there was no application on the part of the employer for an adjournment to deal with the evidence that went outside the particulars, and in those circumstances the Magistrate was entitled to act upon the evidence before him. Moreover he had the advantage of seeing the applicant and the doctors in the witness box and he was in a better position to judge the medical issues than is this Court, depending as those issues must have depended to a large extent upon the acceptance or otherwise of the plaintiff's complaints.

12. The formal orders of the Court are: appeal dismissed. Appellant to pay the respondent's costs.