Grace Bros Pty Ltd v Nada Ubojcic Sca 24 of 1988 Worker's Compensation [1988] ACTSC 44 (22 July 1988)

SUPREME COURT OF THE ACT

GRACE BROS PTY. LTD. v. NADA UBOJCIC
S.C.A. 24 of 1988
Worker's Compensation

COURT

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

CATCHWORDS

Worker's Compensation - appeal - worker injured on internal staircase of house when leaving for work - whether work injured whilst travelling to her place of employment.

The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536

Adcock v. The Commonwealth [1960] HCA 24; (1959-1960) 103 CLR 194

Evans v. Manco Pty. Ltd. (1977) 16 ACTR 11

Gordon v. Capital Theatre (Bridqe J., Supreme Court of ACT, unreported)

The Australian Coastal Shippinq Commission v. Averell (19 [1969] HCA 38; 122 CLR 348

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

HEARING

CANBERRA
22:7:1988

ORDER

The appeal be dismissed and the matter be remitted to the Chief Maqistrate for further determination.

The appellant pay the respondent's costs.

DECISION

This is an appeal by an employer aqainst the determination in favour of a worker by the Chief Magistrate sitting as an arbitrator under the Workmen's Compensation Ordinance 1951. The decision was handed down on 1 March 1988. The essential issue was whether the worker was injured whilst travelling to her place of employment. The relevant provisions of the Ordinance are in s.8 which is in the following terms:

"8. (1) Where personal injury 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 injury were an injury
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
injury was not materially changed or increased by
reason only of any such interruption or
deviation."

2. The primary findings of fact made by the Chief Magistrate were not disputed. These findings, together with a concise statement of the relevant law were set out in the reasons for decision of the Chief Magistrate, which it is worthwhile to set out in full:

"FINDINGS

Under s.8 of the Workmen's Compensation Ordinance
bearing in mind the High Court and ACT
authorities, there is reference to only one
terminal. This is a clear point of distinction
from other jurisdictions particularly NSW and
Victoria.

Travelling can occur on private property,
although Mr. Lunney, for the respondent, would
limit this proposition to the precincts of a
residence, not within the residence itself.

It must be established that the journey has
commenced to the place of work. There is no
doubt that in determining both the character of
the journey and whether the journey has
commenced, the purpose of the actions up to the
time of the injury is crucial.

There is no hard and fast rule to determine
whether a Journey has commenced under the ACT
legislation, or whether the journey is one that
can be encompassed by the legislation as one of
travelling to the place of employment. However,
it seems clear that once the law provides that an
applicant can be travelling or on a journey to a
place of employment while still on private
property, the significance of the difference
between injury on an internal stairway of a house
and an external stairway of a house, is
substantially lost.

In this case the applicant was injured at a time
when she had readied herself for work, taken keys
and bags and, if uninterrupted, would have proceeded
down the internal stairway to work. That
did in fact happen her (sic.), except for a
slight delay because of the stumbling on the way
down the stairs.

The applicant had intended to go to work and at
the time the injury occurred, had ceased any
activities in relation to private or domestic
affairs. Her attention was directed towards her
travel to work.

On the principles outlined there seems no justification
to distinguish this case from cases of
injury on external stairs which are clearly
covered by s.8 of the ACT legislation.

On the facts, the applicant was travelling or on
a journey to a place of employment and therefore
is within the ambit of s.8."

3. The provisions of Commonwealth legislation which is in virtually identical terms to s.8 have been the subject of a number of decisions in the High Court of Australia.

4. In The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536, Dixon C.J. said at p 544:

The expression it (i.e. s.9A(2): ACT equivalent
s.8(2)) defined was reduced to the word
"travelling" and from the definition all
reference to the place of abode was removed; the -
definition which still stands retains no purpose
except to require a direct and unbroken journey.
The result was to leave one terminus of this
direct and unbroken journey "the place of employment"
and to leave the other terminus both
unascertained and unascertainable ..... How you
are to know whether a journey was pursued by the
shortest convenient route without substantial
interruption if you know only where it was to
begin and not where it might end or only where it
was to end and not where it might begin is a
question that may well be asked. But the problem
cannot be answered by devising a terminus a quo
or a terminus ad quem by implication; for the
legislature has deliberately cut off one terminus
of the postulated journey as not a subject of
definition. In other words, the law now abstains
from appointing more than one of the two ends of
the journey. Perhaps it is too much to say that
the law leaves the other end of the journey so
that it will be as it may turn out. But it
almost amounts to that."

On p 545 Dixon C.J. continued as follows:

"Travelling to the employment involves some movement
by reason of the employment. Travelling
from the employment means that the direction from
which the man proceeds must in some way be
determined by his employment."

On p 552 Fullagar J. said:

"I think that there must be 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."
On p553 Fullagar J. said:

"The section now speaks simply of travelling to or from an employment and not to or from a place of employment, and subs. (3) has been omitted. The object of these amendments of 1951 was most probably to widen the field in one direction and to narrow it in another. At any rate, we now have an abstract terminus ad quem and an abstract terminus a quo, and it is only by reference to the purpose or occasion of the journey in relation to duties of employment that any satisfactory meaning can, to my mind, be given to the language used. A man cannot, in my opinion, he properly said to be travelling to his employment unless the purpose of his travelling is to assume the duties of his employment. The notion of travelling from employment is perhaps a little more difficult, for the reason that it is more natural to characterise a journey by reference to its joint of destination than by reference to its point of departure. But a man cannot, in my opinion, properly be said to be travelling from his employment unless the occasion of his journey is the cessation for the time being of the duties of his employment and his primary purpose is to leave those duties behind him."
McTiernan J. expressed a similar view at p 548:

"Section 9A does not expressly say from where the employee must start travelling to his employment or to where the journey from his employment must be taking him, if he is to enjoy protection. It is plain from the history of the provision, unfolded by the Chief Justice, that the abode of the employee cannot be supplied by implication as the starting or finishing point. Presumably, the section was made flexible to avoid hard cases. The section leaves the employee free to begin the journey to his employment at any place he chooses. Of course he would be under the practical necessity of not starting it at a place so far away that he could not arrive at his employment on time."

5. As these passages indicate, and it is beyond question, s.8 of the Ordinance makes no reference to the term "place of abode". In that respect it is to be distinguished from worker's compensation legislation in other places, and indeed from Commonwealth employees' compensation legislation at an earlier time, in which there is express provision for a worker's entitlement to compensation if injured on a journey between the place of abode and the place of employment. Nevertheless, in Wright's case Kitto J., alone amongst the Justices, thought that the issue whether a worker was injured whilst travelling to or from his employment could still be determined by reference to the place of abode.

6. In Adcock v. The Commonwealth [1960] HCA 24; (1959-1960) 103 CLR 194, Dixon C.J. at p 198 said:

"In the first place I do not think that it is
possible to read s.9A(1) as referring to
travelling to or from the employee's abode,
dwelling or residence from or to his employment.
It is not only because the words are not there
and it would not be in accordance with the canons
of interpretation to imply them or to import the
notion or idea they connote. It is also because
at one time the necessary words were in the
provision and were actually taken out."

7. Later in the judgment of the Chief Justice, his Honour expressly endorsed the judgment of Fullagar J. in Wright's case and stated that he differed from the view of Kitto J.

8. Although Dixon C.J. was dissenting both in Wright's case and Adcock's case, his views coincided with those of Fullagar J. on the joint in question. In Adcock's case Windeyer J. said at p 209:

"That section reflects a policy common in
Australian workmen's compensation statutes. The
journey that a worker has to make to get to and
from his place of work is treated as being within
the course of his employment. The scope of the
additional protection is clear enough when the
statute speaks of the journey as being between
the worker's place of abode and place of
employment. When first enacted in 1944, s.9A was
in that form."

9. On page 210 after stating that he disagreed with the
approach of Kitto J., Windeyer J. went on to say as follows:

I respectfully agree with the Chief
Justice that, Parliament having deliberately
removed the place of abode as one terminus of the
journey, the Court should not restore it by
implication."

10. In Evans v. Manco Pty. Ltd. (1977) 16 ACTR 11, Joske J., sitting in this Court, referred to and followed a passage appearing in the unreported decision of Bridge J. in this Court in Gordon v. Capital Theatre. In that case Bridge J. said as follows:

"(Travelling' within the meaning of that section
(s.8) involves physical movement. The movement
must be undertaken and pursued for and with some
purpose of the employment to or from which it is
conducted. Whether or not the termini of the
travelling need to be specific physical joints or
may be merely abstract conceits related to the
requisite purpose, the place of abode is no
longer necessarily a joint of commencement or
termination.

11. Joske J. took this passage to represent a correct statement of principle and pointed out that it was in accordance with the views expressed by Dixon C.J., McTiernan and Fullagar JJ. in Wright's case and by Dixon C.J. and Windeyer J. in Adcock's case. It was submitted on behalf of the respondent worker in the present appeal that that was the correct approach.

12. On the other hand, it was submitted on behalf of the appellant employer that the correct approach was that of Kitto J. in Wright's case and that that approach had been expressly confirmed by a majority judgment of McTiernan and Kitto and Menzies JJ. in The Australian Coastal Shipping Commission v. Averell [1969] HCA 38; (1969) 122 CLR 348, where it was said at p 351:

"In a series of cases, The Commonwealth v.
Wright [1956] HCA 79; (1956) 96 CLR 536; Adcock v. The
Commonwealth [1960] HCA 24; (1960) 103 CLR 194 and The
Commonwealth v. Hollis [1968] HCA 79; (1968) 118 CLR 305, the
court has considered the meaning and application
of s.9A of the Commonwealth Employees'
Compensation Act and has established, not without
dissent, 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 (1956) 96 CLR at p 552. 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
The Commonwealth v. Wright per Fullagar J. (1956)
96 CLR at p553 and per Kitto J. (1956) 96
CLR at p 557; Adcock v. The Commonwealth per
Fullagar J. (1960) 103 CLR at p 204; per Kitto
J. (1960) 103 CLR at p 205 and per Windeyer
J. (1960) 103 CLR at pp 210, 213-214."
(emphasis added)

13. It was also submitted on behalf of the appellant that the same approach was taken by Smithers J. in this Court in Fillipone v. Abel Drainers Pty. Ltd. (1969) 14 FLR 456.

14. There is undoubtedly a strong argument in favour of the appellant that the words in the passage quoted from Averell's case to which emphasis has been added mean that as a matter of law a worker may not be successful in an application for compensation for an injury sustained while travelling to or from his or place of employment unless the injury can be shown to have taken place whilst absent from the worker's place of abode, and whilst en route to or from a place where the duties of employment are to be performed. If this is so, however, the view of McTiernan J. appears to have changed inexplicably from that which he expressed in Wright's case. Moreover the words emphasised appear immediately after a passage from the judgment of Fullagar J. in Wright's case which is apparently referred to with approval, yet the emphasized words are on the face of them in conflict with that same decision of Fullagar J. It may be that in referring to "a place of abode, permanent or temporary" in Averell's case, their Honours had in mind a broader concept than that of a place of abode in the strict sense, and were using the expression simply as a convenient reference to a concept of a place from which all connection with employment was absent. In joint of fact, claims by workers injured whilst travelling to or from employment often occur on a journey from or to a place of abode, and the evidence relating to a worker's activities whilst at the place of abode will be relevant in deciding whether such activities and purposes are private or domestic in nature or whether they occur "by reason of the employment" or are "in some way...... determined by the employment" to use the language of Dixon C.J. in Wright's case at p 545. But that is not to say that the question is decided by drawing a line around a geographical area which is determined to be the worker's place of abode.

15. Counsel for the appellant submitted that in the light of the passage quoted from Averell's case, a distinction is to be drawn between the issue whether the injury occurred whilst the worker was travelling and the issue whether the journey, if proved, was too or from the worker's employment. It was also submitted that such a distinction was recognized in the judgment of Smithers J. in Fillipone's case. However, I think it is to the point that in Fillipone's case Smithers J. was considering whether the injury occurred whilst the worker was travelling from his employment and not to it. As Fullagar J. remarked in Wright's case, the notion of travelling from employment characterises the journey by reference to the point of departure rather than the point of destination. Again, as a matter of fact, it may be difficult for a worker to show that once he has arrived at his place of abode his journey from his employment is nevertheless continuing. In any event in Fillipone's case at p 464, Smithers J. concluded that if the worker has reached a destination of the journey from his employment which is a place where the circumstances and activities of the worker have the quality of being the general pursuit of his own private affairs, then that is the place where his life for the time being is in full contrast or broad opposition to his life in employment and is the place to which in a real sense he has travelled from his employment, so that the journey must be regarded as having come to an end. In reaching this conclusion his Honour accepted and applied the criteria indicated in Kitto J. in Wright's case. In Evans' case Joske J. stated that he differed from Smithers J. and preferred the views of the other members of the High Court in Wright's case. With respect, I think that if there is a common thread to be seen running through these decisions it is that expressed by Fullagar J. in Wright's case and in particular where his Honour stated that a person could not be properly said to be travelling to employment unless the purpose of travelling is to assume the duties of employment. If I may also say so with respect, I think that the common thread is nowhere more accurately and concisely depicted than in the passage from the unreported decision of Bridge J. Furthermore, I think that the Chief Magistrate was correct in law when he said that the purpose of the conduct of the worker up to the time of injury determines both the character of the journey and whether the journey has commenced.

16. The findings of the Chief Magistrate were essentially that the worker at the time of stumbling on the stairs down to the garage had ceased any activities in relation to private or domestic affairs and that her attention was directed towards her travel to work, and that accordingly she was injured whilst travelling to her employment. In my view this was a correct decision in law and in fact. The appeal will be dismissed and the matter remitted to the Chief Magistrate for further determination. The appellant is to pay the respondent's costs.