White v Institution of Surveyors Australia Inc. [2004] ACTSC 61 (21 July 2004)

Last Updated: 18 September 2004

White v Institution of Surveyors Australia Incorporated

[2004] ACTSC 61 (21 July 2004)

PERSONAL INJURY - workers compensation - whether injury sustained in the course of employment - whether injury sustained on journey from place of employment to worker's home - injury to ankle - injury sustained during after work drinks - Workers Compensation Act 1951 (ACT)

Workers Compensation Act 1951 (ACT) s 26

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) s 387(2), s 391 and s 393

Allesch v Maunz [2000] HCA 40 at [23]

Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473

Kostegast v Williamson [2002] NSWSC 1134

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

Adcock v Commonwealth [1960] HCA 24; (1960) 103 CLR 194

Commonwealth v Hollis [1968] HCA 79; (1968) 118 CLR 305

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

Gordon v The Capital Canberra Picture Theatre Ltd (ACT Supreme Court, Bridge J, unreported 4 December 1964)

Laske Hoskins Pty Ltd v Freeland (1969) 15 FLR 333

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

John Holland Constructions Pty Ltd v Chordas (ACT Supreme Court, Miles CJ, unreported, 19 August 1986)

Grace Bros Pty Ltd v Ubojcic (ACT Supreme Court, 22 July 1988)

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

Harrington v Lucas (ACT Magistrates Court, unreported, Magistrate Dingwall, 26 July 2000)

No SCA 18 of 2003

Judge: Cooper J

Supreme Court of the ACT

Date: 21 July 2004

IN THE SUPREME COURT OF THE )

) No SCA 18 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:

MARLENE GAIL WHITE

Appellant

AND:

INSTITUTION OF SURVEYORS AUSTRALIA INCORPORATED (ACN 008 388 074)

Defendant

ORDER

Judge: Cooper J

Date: 21 July 2004

Place: Brisbane

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the defendant's costs, to be taxed if not agreed.

1. The appellant was at all material times a `worker' within the meaning of the Workers Compensation Act 1951 (ACT) (`the Act'). The defendant is a body corporate which acts as the national professional body of surveyors in Australia. The defendant maintains an office in Canberra in the Australian Capital Territory (`ACT'). The appellant was employed by the defendant as an administrative assistant.

2. On 12 May 2000, the appellant was injured when she slipped at premises at Kingston, Canberra, ACT. The appellant made a claim for compensation under the Act in respect of her ankle injury and in respect of a shoulder injury sustained through using crutches at the defendant's office premises in the course of treatment for the ankle injury. The compensation claim was arbitrated by S G Madden, Magistrate under the provisions of the Act.

3. On 7 March 2003, the learned Magistrate dismissed the claim brought in respect of the fractured right fibula. His Worship allowed the claim in respect of partial incapacity to the left shoulder from 15 May 2000. His Worship's decision was accompanied by written reasons.

4. His Worship's formal orders and award were drawn up and entered on 28 July 2003. So far as is presently relevant, the award stated:

`The parties having duly considered the matters submitted, the Court hereby orders and awards as follows:

(a) At all material times, and in particular on 12 May 2000 and on 15 May 2000 the Applicant was a worker within the meaning of the Workers Compensation Act 1951 (the "Act");

(b) At all material times, and in particular on 12 May 2000 and on 15 May 2000 the Applicant was employed by the Defendant;

(c) on 12 May 2000 the Applicant sustained injury to her right ankle. However, this injury was not an injury arising out of or in the course of the Applicant's employment with the Defendant;

(d) On and from 15 May 2000 the Applicant injured her left shoulder during the course of her employment with the Defendant;

(e) As a result of the injury to the left shoulder, the Applicant was partially incapacitated from 15 May 2000 and from that date incurred expenses for the medical treatment of the shoulder.

THE COURT THEREFORE ORDERS AND AWARDS:

1 That the Defendant pay compensation to and [on] behalf of the Applicant from 15 May 2000 in accordance with the provisions of the Act for the left shoulder injury;

2 That the Defendant pay any amount determined to be owed by the Applicant under the Health and Other Services (Compensation) Act 1995 arising out of the said left shoulder injury;

3 That the Defendant pay 25% of the costs of the Applicant assessed at two thirds of the Supreme Court scale, with disbursements in full, such costs to be taxed by the Registrar in the prescribed manner or as agreed within 28 days from the date of such taxation or agreement.'

5. The appellant appeals against so much of the award as denied her an award under the Act in respect of her right ankle injury suffered on 12 May 2000.

6. The learned Magistrate found:

(a) the defendant employed three persons in connection with its operations in Canberra, namely:

(i) Mr John Crickmore, the Chief Executive Officer of the defendant;

(ii) Ms Julie Fairman, as Secretary; and

(iii) the appellant as administrative assistant;

(b) the National Council of the defendant comprises about twenty members and holds two council meetings a year, one of which was held in Canberra;

(c) a meeting of the National Council was scheduled in Canberra on 12 and 13 May 2000;

(d) it was necessary for the appellant to work from 9.00 am to 5.00 pm as the minute secretary for the Council meeting;

(e) there was a conference dinner held on 12 May 2000 at La Rustica Restaurant, Kingston, Canberra which the appellant attended;

(f) the appellant was expected by her employer to attend the dinner function;

(g) it was both proper and appropriate for the appellant to be present at the dinner as an extension of her normal employment duties and fully consistent with her duty statement;

(h) the dinner concluded at around 10.30 pm;

(i) Mr Crickmore offered the appellant a lift home from the dinner which offer the appellant declined;

(j) a decision was taken that the appellant would join Ms Fairburn, Mr Tony Harvey, Mr Steve Hogan and Ms Anne Wallington and go to Nelson's Bar at Kingston for an after dinner drink;

(k) when the appellant declined the invitation to travel home with Mr and Mrs Crickmore, she knew she would be taking a taxi with Ms Fairman in order to travel home as Ms Fairman had cab vouchers provided by the defendant;

(l) the appellant slipped and fell, thereby injuring her right ankle, on the premises at Nelson's Bar between 11.00 and 11.30 pm on 12 May 2000;

(m) Ms Fairman and the appellant left Nelson's Bar around 1.00 am and the appellant went home by taxi accompanied by Ms Fairman;

(n) at the time the injury occurred, the appellant thought that the ankle was simply badly sprained, when in fact x-ray examination at Canberra Hospital on 13 May 2000 revealed that the right fibula was fractured;

(o) in respect of the appellant's presence at Nelson's Bar:

(i) Mr Crickmore did not suggest, encourage, invite or admonish the appellant to go to the bar at the conclusion of the dinner; and

(ii) it was a personal, private, individual decision of the appellant to go there for an after dinner drink, unconnected with her employment or work;

(p) the occasion of having additional drinks at Nelson's Bar was not a continuation of the course of employment duties of the appellant with the defendant;

(q) there was a severance between work and social activities at the conclusion of the dinner;

(r) the fractured right fibula sustained by the appellant at Nelson's Bar on 12 May 2000 was not sustained in the course of employment, nor did it occur in relation to any form of travelling or journeying as part of her work;

(s) the injury was unrelated to the appellant's work with the defendant; and

(t) the injury was sustained while the appellant engaged in a personal social function;

7. The appellant, by her amended notice of appeal, alleged that the learned Magistrate erred in:

(a) concluding that the appellant was not engaged in travelling from her employment when she suffered the injury to her right ankle;

(b) failing to find that the injury occurred while the appellant was travelling from her employment;

(c) failing to consider whether the appellant suffered the injury during or after a substantial interruption of the journey made for a reason unconnected with her employment;

(d) failing to conclude, as was required by the circumstances of the case, that if the injury had occurred during a substantial interruption of the journey, the defendant had failed to establish that the interruption was for a reason unconnected with the appellant's employment; and

(e) failing to find that the right ankle injury was suffered in the course of the appellant's employment with the defendant;

8. The appellant's entitlement to compensation, if any, was under s 7(1) of the Act, which provided:

`7(1) Where a worker suffers personal injury arising out of or in the course of the worker's employment, the employer is liable to pay compensation in accordance with Schedule 1.'

9. The Act, so far as is presently relevant, provided in respect of injury sustained while travelling to or from employment:

`8(1) Where personal injury is caused to a worker while travelling to or from -

(a) the worker's employment; or

(b) any place which it is necessary for the worker to attend to obtain a medical certificate, or to receive medical treatment or compensation, in relation to a previous injury in respect of which compensation is payable;

the worker's employer is liable to pay compensation as if the first-mentioned injury were an injury arising out of or in the course of that employment.

(2) In this section -

"travelling" means travel, 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 worker's employment 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.'

10. This appeal is an appeal by way of re-hearing: s 26 of the Act, s 387(2), s 391 and s 393 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT). The powers of this Court on appeal are exercisable where the appellant can demonstrate that, having regard to all the evidence before this Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40 at [23].

11. The appellant submitted that her case before the learned Magistrate was put on two bases. The first basis involved the submission that it was a continuation of the Council's function to go on to, and remain at, Nelson's Bar and that the continuation of the function at that location was so much an incident of her employment, that the learned Magistrate should have concluded that the appellant's attendance at the bar was in the course of her employment with the defendant. Such a conclusion, it was submitted, was supported by the decisions in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 and Kostegast v Williamson [2002] NSWSC 1134. The second basis was that the appellant's case fell within s 8 of the Act, and that the decisions in Commonwealth v Wright [1956] HCA 79; (1956) 96 CLR 536; Adcock v Commonwealth [1960] HCA 24; (1960) 103 CLR 194; Commonwealth v Hollis [1968] HCA 79; (1968) 118 CLR 305; Australian Coastal Shipping Commission v Averell [1969] HCA 38; (1969) 122 CLR 348; Gordon v The Capital Canberra Picture Theatre Ltd (ACT Supreme Court, Bridge J, unreported 4 December 1964); Laske Hoskins Pty Ltd v Freeland (1969) 15 FLR 333; Entrad Tyres Pty Ltd v Hollingsworth (1985) 62 ACTR 43 and John Holland Constructions Pty Ltd v Chordas (ACT Supreme Court, Miles CJ, unreported 19 August 1986) precluded the learned Magistrate from concluding that the appellant was not in the particular circumstances of this case `travelling ... from (her) employment' from the time she left La Rustica Restaurant at Kingston until the time she arrived at her home.

12. The learned Magistrate found that the invitation which Mr Crickmore, the CEO of the defendant, made to take the appellant home, which she declined, was a significant signal from Mr Crickmore that the appellant's work-related duties relating to the function were at an end. His Worship said:

`... This was a significant direct signal from the Chief Executive that the dinner and formal part of the evening relating to or an extension of the day's business affairs was at an end. The role of the employee with the Institute and its conference was concluded at the end of the dinner. ...'

13. The appellant submitted that the interference which the learned Magistrate drew from the offer was unsustainable in the light of the fact that:

(a) Mr Crickmore must have known that there was a plan for some of the Council members, together with the appellant and Ms Fairman, to continue socialising;

(b) Mr Crickmore must have known that the appellant was likely to go home in the taxi which the defendant was paying for; and

(c) given that Mr Crickmore was not called as a witness, in the light of the evidence of the appellant and Ms Fairman, the offer of a lift home should have been characterised as nothing more than a simple courtesy.

14. Absent the finding that the work-related function ceased at the conclusion of the dinner, the appellant submitted that the Court should find that the continuation of socialising at Nelson's Bar, involving the appellant, was an extension of her normal employment duties which should be treated in exactly the same manner as which the learned Magistrate treated her attendance at the Council dinner.

15. The learned Magistrate dealt with the conclusion of the dinner in the following way. He said:

`Mr and Mrs John Crickmore, the CEO, collected her from her residential premises in Jerrabomberra that evening at about 7.20PM. The dinner concluded at about 10.30PM. The Crickmores offered her a lift home. Mrs White declined the offer.

A decision had been taken that Mrs White would join and go with Ms Fairman, Mr Tony Harvey, Mr Steve Hogan and Ms Anne Wallington to Nelson's Bar also situated in Kingston for an after dinner drink. Nelson's Bar is apparently located on the other side of the shopping centre complex of Kingston some distance from the restaurant where the Institute's dinner was convened. The party walked to this bar. The evidence varies as to the length of the walk from 2 to 3 minutes (Ms Fairman's version) to 10 minutes (Mrs White's evidence). The journey involved at least 2 left turns from their restaurant and also involved walking through another bar before they arrived at their destination. Nelson's Bar is in Green Square.

When Mrs White declined the invitation to travel home with the Crickmores, she knew she would be taking a taxi with Ms Fairman as she had cab vouchers provided by her employer. It was difficult to place a reliable figure as to when the party left the dinner. There were about 20 to 22 at the dinner. It was Tony Harvey's idea to continue the socialising and go on to another venue. The evidence suggests that everybody was enjoying themselves, having a good time and it was only early in the evening. The group simply wished to continue to socialise. The party seemed to have left the restaurant some time after 10.30PM and before 11PM. The fall occurred between 11PM and 11.30PM.'

16. I am not persuaded that the learned Magistrate erred in his factual findings as to what occurred in the reasons set out above. It is totally consistent with the evidence that the appellant gave. She said in evidence-in-chief:

`And where was the dinner, by the way?---At La Rustica at Kingston.

Did you pay for yourself?---No.

How did you get there?---John Crickmore and his wife picked me up from home.

About what time did you get to the dinner?---Between 7 and 7.30, probably about 20 past 7.

And about what time did this dinner at La Rustica actually finish?---10.30 - 11 o'clock. Probably 10.30.

Was Mr Crickmore still there at the end?---He left before we did.

Did he offer you a lift home?---Yes.

Did you accept that lift?---No.

Why not?---Because we were going - we'd been invited by one of the councillors to go to Nelson's Bar, Julie and myself.

And how were you planning to get home?---Well, by taxi with Julie.

And in fact did you go to this bar, Nelson's Bar, later in the evening?---Yes.

About what time did you get there?---11-ish.

Who went?---Tony Harvey, Dean Wallington, Julie Fairman, myself and the councillor from Yass, Steve Hogan.

I can't remember now, was it three or four men that you mentioned, were they all counsellors?---Yes.

And you and Ms Fairman made up the rest of the party?---That's right.'

17. In cross-examination, she said:

`Now Mr Crickmore and his wife gave you a lift to the restaurant?---That's correct.

And it was of course anticipated that they will also give you a lift home from the restaurant, wasn't it?---I didn't anticipate, no.

You didn't think they were going to give you a lift home?---Well, I - I didn't think about it I - - -

That's what you expected then?---Yes. Yes.

And indeed, Mr Crickmore offered you a lift home, correct?---Yes.

That was at the conclusion of the dinner?---Yes.

You elected not to go home with Mr Crickmore because the night was young and you wished to further socialise?---(No audible reply).

Correct?---Yes.

You then left La Rustica, correct?---Yes.

...

And those bars and restaurants were opened and operating in full swing, I take it, on Friday, 12 May the day you were injured?---Yes.

Are you able to say how long the walk from La Rustica to Nelson's Bar took?---A few minutes.

HIS WORSHIP: Whose idea was it to go there?---Tony Harvey's.

MR STRETTON: And the party that elected to kick on, if I can use that phrase, was yourself, Ms Fairman and the three men did you say, Mr Hogan - - -?---Three councillors.

Yes. And the numbers attending the dinner there were the full 20 councillors attended as far as you were aware?---Yes.

And apart from Mr Crickmore was there other companions, male or female, for the councillors whether it be wives or partners or whatever, did they also attend or was Mr Crickmore the only - - -?---I think it - - -

- - - one who had his partner?---I think it was just Mr Crickmore. The wives don't normally travel interstate.

So would there have been about 23 or 24 at the dinner, something up to 25 perhaps?---22.

22. Well, if Mrs Crickmore was there and you were there and Ms Fairman were there and 20 councillors that makes at least 23, doesn't it?---Yes, 22/23. I don't know exactly - - -

Or perhaps a couple more, perhaps up to 25, would that be right?---I would have thought there was 22 there.'

18. Ms Fairman in her evidence-in-chief said:

`Where did you go after La Rustica?---Nelson's Bar in Kingston.

And how did you come to go [to] that place?---When we were winding up the dinner in the restaurant, some of the counsellors - four of them, said you know wanted to go on and have a few more dinks and invited Marlene and myself to join them.

How were you planning on getting home that night?---Cab.

Who pays for the cab?---Work, with CabCharge.

So, when you left the La Rustica, where'd you go?---We walked around to Nelson's Bar.

How far away is that?---Approximately two minute walk.

HIS WORSHIP: Approximately what?---Two minute walk.

MR CROWE: So not far?---No, not far at all.

And what did you do when you got to Nelson's Bar?---We sat down - round a booth type table, sat down in that and Tony Harvey, one of the counsellors [sic], bought drinks and we drank them.'

19. There is no evidence which would support a finding that the gathering of three councillors, Ms Fairman and the appellant at Nelson's Bar constituted a continuation of the defendant's function which commenced with the Council dinner at the La Rustica Restaurant at Kingston. The function at the restaurant involved around 20 councillors together with Mr Crickmore, his wife, Ms Fairman and the appellant. It was a dinner function. It is clear on the evidence that everyone regarded the dinner as finished at around 10.30 pm and the inference is that everyone left the premises at the conclusion of the dinner. The gathering at Nelson's Bar was not organised by the defendant or any person acting on its behalf. It came about in consequence of an invitation made by one of the councillors, Mr Tony Harvey, to Ms Fairman and the appellant, to join himself and two other councillors for a social drink after the conclusion of the dinner; it was a private social arrangement unrelated to the defendant, Mr and Mrs Crickmore or the other diners who had attended at the restaurant.

20. The learned Magistrate was correct in his finding that the defendant's function, the dinner, concluded at the La Rustica Restaurant. He was also correct in his finding that the offer of Mr Crickmore to drive the appellant back to her home, Mr and Mrs Crickmore having collected her and brought her to the dinner, signalled to the appellant that Mr Crickmore regarded her work-related duties in respect of the dinner function as having come to an end. There was no evidence that, at the time the offer to drive the appellant home was made by Mr Crickmore, the appellant told him of her intentions to join Ms Fairman, Mr Harvey and the others for a social drink at Nelson's Bar, or that he knew of her intentions. There is no evidence that Mr Crickmore did anything to suggest, encourage or invite the appellant to go with Mr Harvey and the other councillors for a social drink at Nelson's Bar.

21. The appellant did not suggest in her evidence that the offer of Mr Crickmore to drive her home was anything other than genuine and that the decision to decline it was her own. The reason she gave for declining the lift was:

`... Because we were going - we'd been invited by one of the councillors to go to Nelson's Bar. Julie and myself.'

and

`because the night was young and you wished to further socialist (sic)? ...(no audible reply)

Correct? - Yes.'

The idea to go to Nelson's Bar was, she told the learned Magistrate, that of Tony Harvey.

22. The evidence does not establish any factual basis upon which it is open to hold that the action of Mr Harvey in extending the invitation to the appellant to join him and others for a social drink was the conduct of the defendant, or conduct for which the defendant was responsible. There is no demonstrable basis in law or fact to hold that because Mr Harvey was a member of the Council of the defendant he was authorised to convene the gathering at Nelson's Bar as a function of the defendant and to invite or encourage the appellant to attend it as an incident of her employment with the defendant.

23. For the appellant to succeed on the first of her contentions she must demonstrate that her personal injury was one "arising out of or in the course of [her] employment" with the defendant. Relevantly, the appellant contends that the injury sustained at Nelson's Bar was one arising in the course of her employment, that is, the injury was incurred during a time when she was acting in her employment. In support of her contention she relies upon a statement of principle of the majority (Mason CJ, Deane, Dawson and McHugh JJ) as to the meaning of "in the course of employment" in Hatzimanolis at 484:

`...an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.'

24. In the instant case the injury did not occur in an interval or interlude occurring within an overall period or episode of work. It occurred after the finishing point of a discrete period of work on 12 May 2000 which ended at the conclusion of the Council dinner at La Rustica. The daily period of work had been completed and the appellant was free to return to her home. The injury sustained by the appellant occurred between two discrete periods of work. That is, between the completion of her work on 12 May 2000 and the resumption of her ordinary working hours on the next work day. She was not required to attend the gathering at Nelson's Bar for the purposes of her work with the defendant. Nor was she invited or encouraged to attend the gathering for the purposes of her employment by anyone authorised by the defendant to direct the appellant as to the manner and circumstances of the performance of her work for the defendant. The factual circumstances which gave rise to the liability in Hatzimanolis are removed from the present case and there is nothing in that decision which would lead to the conclusion that the appellant's presence at Nelson's Bar arose in the course of her employment with the defendant.

25. The fact that the defendant did nothing to require, encourage or invite the appellant to attend the gathering at Nelson's Bar is fatal to her claim on the first basis. It was the existence of such conduct on the part of the employer which led to a finding in favour of the worker in Kortegast.

26. In Kortegast, the worker was injured on the work site after work had finished for the day. However, the worker in that case had been encouraged to remain on the site by his employer, Williamson, who was also present. Absent the conduct of his employer, Mr Kortegast would not have succeeded. As Matthews AJ said at [30];

`...if Mr Kortegast had taken it upon himself to remain on site drinking after work, in the absence of Mr Williamson and without any encouragement or concurrence from him, then the situation would also have been very different. However the evidence shows that Mr Kortegast remained at his work place in the presence and with the encouragement of his employer for the whole period between the finishing of his work and the sustaining of his injuries. This being the case I do not think it could be said that the interval between periods of work had yet commenced when he sustained his injuries. It follows that his injuries were sustained during the course of his employment.'

27. There is no merit in the first ground relied upon by the appellant.

28. The second basis relied upon by the appellant is that her injury was caused while she was travelling to or from her employment within the meaning of s 8(1) of the Act.

29. The meaning of "travelling to or from the worker's employment" for the purposes of s 8(1) of the Act was considered by Bridge J in Gordon v The Capital Canberra Picture Theatre Ltd (ACT Supreme Court, 4 December 1964). After a review of the authorities his Honour said (at p 14):

`... "Travelling" within the meaning of that section 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 points, or may be merely abstract concept related to the requisite purpose, the place of abode is no longer necessarily a point of commencement or termination.'

(See also Miles CJ in Grace Bros Pty Ltd v Ubojcic (ACT Supreme Court, 22 July 1988, addressing this formulation as a correct statement of the operation of the section.)

30. In Fillipone v Abel Drainers Pty Ltd (1969) 14 FLR 456, Smithers J was concerned with a claim under the Ordinance alleging an injury sustained by a worker while travelling from his place of employment. In respect of s 8(1) his Honour said (at 461-462):

`It is pointed out by Kitto J in Wright's case [(1956) [1956] HCA 79; 96 CLR 536 at 557] that s 8(1) of the Ordinance refers to the journey not by specifying its terminal point but by prescribing its character. His Honour says that enough is to be found in the section to indicate what the terminal points are.

The starting point is specified. It is the employment. It is, as Fullagar J said at p 553, an abstract terminus a quo. But a journey starts from a place. It is a fair deduction therefore that the starting terminal is the place characterized by the fact that when the claimant was there he was in a state of employment, in and about his work.

The other terminal, called by Fullagar J the abstract terminus ad quem, must also be a place.

It does not seem unreasonable to infer that it is the place characterized by the feature that when the claimant is there he will be in a full sense occupied in private pursuits of such nature and extent that, having regard to the pattern of his life, they may be seen to be "in broad opposition" (see Kitto J in Adcock v The Commonwealth [(1960) [1960] HCA 24; 103 CLR 194 at 204-205]) to that part of his life which was the employment from which he had travelled.'

31. As his Honour identified the journey terminates at the place which is, for the time being, a place where the worker is engaged in the general pursuit of the worker's own affairs and serving exclusively his or her own ends. His Honour concluded (at 462):

`Only when he reached a place where his circumstances had this quality would he be at the destination of the journey in which he was travelling from his employment. It is a question of the workman throwing off not only his employment, but throwing off also his travelling from it.'

32. For present purposes, the first enquiry is whether the appellant, when she was injured at Nelson's Bar, was at a place where she was, for the time being, engaged in the general pursuit of her own private affairs such that she may be said to have thrown off not only her employment but also her travelling from it.

33. The appellant contended that she was, for the purposes of s 8(1), travelling from her employment (if her employment terminated at the end of the dinner) at all times thereafter until she reached her place of abode. It was said that the period of time spent at Nelson's Bar was an interruption to her journey and that the issue was whether the interruption was "substantial" and whether it was made for a reason "unconnected" with her employment. The appellant submitted that it was for the defendant to show that the interruption to the journey was for a purpose unconnected with the employment.

34. The appellant's argument that the learned Magistrate was obliged to find that she was travelling from her place of employment until she reached her abode relies upon statements in The Commonwealth v Wright [1956] HCA 79; (1956) 96 CLR 536 and Adcock v The Commonwealth [1960] HCA 24; (1960) 103 CLR 194. Statements concerning the place of abode as the termini of a journey from the worker's place of employment must be treated with care and placed in their historical context.

35. The older authorities, and the earlier form of the statute in New South Wales, restricted the right of a worker to coverage of journeys from work to the worker's place of abode. Travelling from work to another termini was not a journey covered by the Act. The statute was amended to remove the reference to the place of abode as the termini. Kitto J was of the view that on its proper construction the relevant travelling remained limited to a travelling to the worker's place of abode: see Wright. That view did not win universal support from the other members of the High Court and Kitto J subsequently acknowledged that it may have been too narrow: see Adcock. As appears in the passage from the reasons of Bridge J in Gordon set out above, by 1964 it was generally regarded that it was no longer necessary that the place of abode be the point of commencement or termination of the journey. In each case it became a question of fact as to the termini of the journey from the relevant place of employment. That may or may not have been the worker's place of abode. There is nothing in the two High Court decisions referred to above which required the learned Magistrate to find in the present case that the appellant was travelling from her employment to her home when she was injured: see the treatment of the cases by Smithers J in Fillipone at 461-462, 464-465; and Bridge J in Gordon v The Capital Canberra Picture Theatre Ltd at pp 7-14.

36. It is clear from the reasons of the learned Magistrate that he found that the appellant, in refusing the offer of Mr Crickmore, the CEO of the defendant, to drive her home at the conclusion of the dinner, had determined not to travel to her place of abode at that time. He found that the appellant had determined thereafter to engage in private personal pursuits. The learned Magistrate dealt with the claim advanced on the basis that the appellant was travelling from work in the following way:

`I have further considered the decision of Magistrate Dingwall in Harrington v Lucas and another. I do not disagree with his interpretation and analysis of the law applicable to cases of this nature. I adopt totally the principles stated by the Magistrate, especially from page 18 onwards.

I have concluded the fractured right fibula sustained by Mrs White at Nelson's Bar on Friday, 12 May 2000 was not sustained in the course of employment, nor did it occur in relation to any form of travelling or journeying as part of her work. The injury was sustained in my assessment of the evidence whilst she engaged in a personal private social function. It was a most unfortunate accident unrelated to her work with the Surveyors Institute.'

37. The reasons of Magistrate Dingwall to which reference is made are those given on 26 July 2000 in Harrington v Lucas (ACT Magistrates Court, unreported, Magistrate Dingwall, 26 July 2000). In that case the worker was injured at a restaurant known as "Waffles" where she had stopped with a friend for a drink at a "staffers" gathering while on a car journey home after work. The learned Magistrate identified the first issue as being whether, as a matter of fact, the journey undertaken from the place of employment to Waffles ended upon the arrival of the worker at that location, or whether it was but an interruption in the journey from her employment to her home. The relevant authorities which guided the resolution of that issue in the context of s 8(1) of the Act to which reference was made included Gordon and Fillipone. Ultimately, the learned Magistrate applied as the relevant test that articulated by Smithers J in Fillipone. That is, whether the worker was at a place where he or she was so predominately concerned with his or her private affairs, contrasted with matters relating to his or her employment, that the worker may be regarded as having thrown off not only his or her employment but also his or her travelling from it.

38. The test articulated in Fillipone and in Harrington was applied in the present case. There was no legal error in doing so. It was determined against the appellant. It was also the test applied in John Holland Constructions Pty Ltd v Chordas (ACT Supreme Court, 19 August 1986, unreported) by Miles CJ at pp 5-6. What lead to a different conclusion in Chordas was the finding that the hotel meeting was a regular Friday meeting to facilitate discussion of the employer's business affairs among middle management employees. These were meetings which were encouraged by the employer and thus retained a sufficient connection with the employment to conclude that the worker had not abandoned the affairs of his employment and his journey from work. That is not this case.

39. The evidence as to the appellant being at Nelson's Bar is in short compass. In her evidence in chief she was asked:

`Why did you do it? -- Because we were asked to go. I don't really know. We were having a good time, it was early, because Tony Harvey asked us to go.'

40. In her cross-examination she said:

`You elected not to go home with Mr Crickmore because the night was young and you wished to further socialise? -- (No audible reply)

Correct? -- Yes

You then left La Rustica, correct? -- Yes'

41. Other than the fact that three of the persons were councillors who had attended the dinner at La Rustica and that one of them had extended an invitation to join them after the dinner for a social drink, there is no evidence of any connection between the gathering at Nelson's Bar and the appellant's employment. When the appellant left La Rustica Restaurant in the company of the other persons to go to Nelson's Bar she did not set out on a journey from her employment to her home. She had determined not to do so when she declined her employer's offer of a lift home. Notwithstanding that she intended ultimately to return home by taxi with Ms Fairman who had the CabCharge vouchers to cover the cost of such travel, the immediate journey she set out on from La Rustica Restaurant was one on foot to Nelson's Bar with the intention of engaging in private social activities at that place until she decided to leave that place and return to her home. Once at Nelson's Bar, the journey from her employment had ended; she was thereafter engaged in private pursuits unconnected with her employment. I agree fully with the learned Magistrate when he finds:

`...The evening was early, it was a Friday evening, the delegates from interstate were free to enjoy themselves with two of the local employees. It was not in the course of employment, nor work-related or part of any journey nor was there any interruption of a journey. There was no suggestion, encouragement or invitation nor admonition by the CEO to go or not to go to Nelson's Bar. It was a personal, private individual decision wholly unconnected with employment or work. I do not consider the additional drinks was a continuation of the course of employment duties with the Surveyors Institute.'

42. As the relevant journey had ended at the time of the injury, the appellant does not make out any basis to compensation under s 8(1) of the Act.

43. The appeal is dismissed and the appellant is ordered to pay the defendant's costs, to be taxed if not agreed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Cooper.

Associate:

Date: 21 July 2004

Counsel for the appellant: Mr R Crowe SC

Solicitor for the appellant: Baker Deane & Nutt

Counsel for the defendant: Mr G Stretton

Solicitor for the defendant: Sparke Helmore

Date of hearing: 28 October 2003

Date of judgment: 21 July 2004