Re Peter Mcgale v Raiga Irene Glad [1981] FCA 89; (1981) 59 FLR 1 (3 July 1981)

FEDERAL COURT OF AUSTRALIA

Re: PETER McGALE
And: RAIGA IRENE GLAD [1981] FCA 89; (1981) 59 FLR 1
No. F.C. G.40 of 1980
Workers' Compensation - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Evatt(1), Sheppard(2) and Kelly(3) JJ.

CATCHWORDS

Workers' Compensation - Workmen's Compensation Ordinance 1951 (A.C.T.) (s.8) - Appeal from Supreme Court of the Australian Capital Territory - Worker injured after leaving work - Circumstances obscure - Whether "travelling from employment" - Meaning of "travelling" - Whether "interruption substantial" - Whether purpose of interruption relevant - Meaning of "made for a reason" - Whether substantial involuntary interruption can negative right to compensation for injury caused during such interruption - Incapacity - Whether partial or total.

Workers' Compensation - Substantial interruption of journey home - Whether interruption must be voluntary - Whether total incapacity - Workmen's Compensation Ordinance 1951 (A.C.T.), s. 8.

Statutes - Interpretation - Substantial interruption of journey home - Whether interruption must be voluntary - "Made for a reason unconnected with the workman's employment" - Whether that phrase affects only "any substantial deviation" - Workmen's Compensation Ordinance 1951 (A.C.T.), s. 8. The appellant employer appealed from a judgment of the Supreme Court of the Australian Capital Territory (Connor A.C.J.) to the Full Court of the Federal Court of Australia on the grounds that the appellant was under no liability to the respondent to pay her compensation and that the court was in error in holding that the respondent was totally incapacitated for her work.

Held: Per curiam dismissing the appeal - (1) The phrase "made for a reason unconnected with the workman's employment" in s. 8(2) of the Workmen's Compensation Ordinance qualifies both "interruption" and "deviation".

(2) The "interruption" for the purpose of s. 8(2) of the Ordinance must have been the result of a conscious decision voluntarily made by the workman to interrupt his journey.

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

Arthur J. Stephens (N.S.W.) Pty. Ltd. v. Napoli (1969), 43 ALJR 452 (n.); considered.

Mathews v. Welded Products Ltd. (1955), 29 WCR (NSW) 145, referred to.

(3) In the present case the respondent's journey was not the subject of any interruption within the meaning of s. 8(2) of the Ordinance.

(4) The respondent was "travelling" from her place of employment to her home at the relevant time within the meaning of s. 8(2) of the Ordinance.

(5) The respondent was totally incapacitated as a result of the relevant events.

Ball v. William Hunt & Sons Ltd., (1912) AC 496, applied.

Ruiz v. Canberra Rex Hotel Pty. Ltd. (1974), 5 ACTR 1; Birch Brothers Ltd. v. Brown, (1931) AC 605, referred to.

H.D. Sperling Q.C. and G.A. Crawford, for the appellant.

J.S. Coombs Q.C. and G.J. Lunney, for the respondent.

HEARING

Sydney, 1981, April 8; July 3. 3:7:1981
Cur.adv.vult.

Solicitors for the appellant: Davies, Bailey & Cater.

Solicitors for the respondent: Crossin & Co.
E.F. FROHLICH

ORDER

1. The appeal be dismissed.

2. The Appellant pay the Respondent's costs of and incident to the appeal. Appeal dismissed.

DECISION

The appellant who was the respondent's employer appeals against a judgment of the Supreme Court of the Australian Capital Territory (Connor J.) upholding an award made in the respondent's favour under the Workmen's Compensation Ordinance 1951. The appeal is brought on two grounds. It is firstly submitted that the appellant was under no liability to the respondent to pay her compensation. If that submission fails, it is submitted that the magistrate and the Supreme Court were in error in holding that the respondent was totally incapacitated for her work. It is submitted that after November 1977 she was partly incapacitated only.

The facts which give rise to the claim made by the respondent are not now in issue. The findings of the learned magistrate before whom the matter first came have not been challenged. They were accepted as correct by the Supreme Court. The respondent claims to have been injured in the course of her journey home after finishing work as a cleaner at a building known as Churchill House on 12 October, 1975. The appellant had entered into a contract to clean the building. The respondent was employed by him to carry out part of that work.

The provision of the Ordinance which is in question is s.8. So far as is relevant it is as follows:

"8.(1) Where personal injury by accident is caused to a workman while he is travelling to or from -

(a) his employment . . . . . . . . . . .

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,
. . . . . . . . . . . . .
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."

The respondent was not on good terms with her husband. On the evening in question he had come to her place of employment and, to use an expression, made a nuisance of himself. She was aware that he had a propensity for violence, particularly when he had had something to drink. He was drinking whilst she was doing her work. At about 10 p.m. she left the premises which she had cleaned. Her husband was with her. Almost immediately after she walked outside the door he assaulted her and inflicted a number of injuries particularly in the region of her head and neck. She attempted to get away from him. The evidence does not disclose precisely what then happened. It may be that the respondent fled on to the roadway and was run down by a car, or it may be that still further injuries were inflicted by her husband or were occasioned as the result of her falling. What is clear, however, is that whatever injuries befell the respondent were caused directly or indirectly by the violent conduct of her husband.

The most serious of the injuries which the respondent suffered was a fracture of her right ankle. No other injury had any lasting effect except an injury to her neck from which she appears to have recovered by the middle of 1978. I shall say more of her injuries when dealing with the question of incapacity.

The vagueness of the respondent's evidence of what precisely transpired after she left her place of employment is due to the fact that she was stunned or dazed as the result of being struck repeatedly in the area of her neck and back of the head. It is impossible to tell from the evidence when it was that her ankle was broken or what exactly went on in the period that followed her leaving the building. It is established that she was found by passers by at about 12.30 a.m. the following day. She was then lying with her husband on part of the roadway at the rear of Churchill House. She was screaming. Thus she had been outside the building for a period of two hours or more whilst the injuries to which I have referred and other more minor ones were inflicted upon her. The evidence establishes that she was, during this period, no more than semi-conscious. To the extent that she had any awareness of what was going on, she remained in constant fear of her husband. She was prevented from leaving the vicinity of Churchill House both because of her dazed condition and her fear of her husband whom she thought would further injure her if she sought to escape.

In my opinion the detail of what went on in the period of two hours or so before she was found is not critical. It is plain upon the evidence which the learned magistrate accepted that she did not remain where she was voluntarily. Her object was to go home. She had commenced her journey. She was forcibly prevented from continuing with it by the actions of her husband which made it necessary, eventually, for her to be taken to hospital.

It is the appellant's submission that on these facts the respondent is not entitled to compensation because there was, due to what happened outside the appellant's premises, a substantial interruption of the respondent's journey within the meaning of s.8(2) of the Ordinance which I have earlier set out. It was also said that the respondent had failed to discharge the onus (which was said to lie upon her) of establishing that there was, by reason of the interruption, no material change or increase in the risk of accident. Finally it was submitted that, whether or not there had been a substantial interruption of the journey within the meaning of the sub-section, it was not established that the respondent was, at the time she received her injuries, "travelling" from her employment within the meaning of s.8(1) of the Ordinance.

Upon the findings of fact that were made it seems to me that there is a good deal to be said for the view that this is a straightforward case of injury by accident caused to a person while travelling from her employment. The evidence which the learned magistrate accepted was that the respondent was struck on the back of the neck almost immediately after she left the building. As a result she was thereupon stunned or dazed. It may be that the incapacitating injury - the fracture to her ankle - did not occur until some later time. But her dazed condition meant that she had no ability to control the situation or to escape from the predicament in which she found herself from the time she left the building. The whole episode may have lasted over a period of more than two hours, but it was nevertheless one episode, made up though it was of a series of violent attacks and injuries. If the evidence be looked at in that way, one is not concerned with any question of interruption. Plainly the episode commenced whilst the respondent was travelling home from her employment. The fact that the incapacitating injury may not have been caused until after the passing of an appreciable time after the first of the attacks is not important.

That was not the approach to the problem adopted by either party, nor was it the way in which the matter was dealt with in either of the courts below. That may be because it was thought that the evidence established an interruption (although not one, as it turned out, within the meaning of s.8(2) and the fracture of the ankle was caused during the period of it. By reason of what has gone before and the way in which the matter was presented to us, I do not feel disposed to decide the case on a ground never relied upon by the respondent and not the subject of any submission to this Court. I shall approach the problem as it was approached before the magistrate and in the Supreme Court, and in the argument before us.

I deal with the submission based on s.8(2) first of all.

The relevant words are: -

"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".

It was submitted by counsel for the appellant that the words "made for a reason unconnected with the workman's employment" affected only the words "any substantial deviation" and not the words "any substantial interruption". As a matter of grammar the later words are capable of qualifying both interruptions and deviations. It is difficult to think of a reason why the legislature would qualify deviations but not interruptions. In those circumstances I would read the words "any substantial interruption" as qualified or affected by the words "made for a reason unconnected with the workman's employment". Thus the interruption which is referred to will not be an interruption for the purposes of the sub-section unless it is one made for a reason unconnected with the workman's employment.

The presence of the words "for a reason" would suggest that what is being spoken of is a reason personal to the workman. This in turn brings into the provision the notion that the interruption must have been the result of a conscious decision voluntarily made by the workman to interrupt his journey. Support for that view is to be found in dicta in the decision of the High Court in Scobie v. K. D. Welding Company Pty. Limited [1959] HCA 65; (1959) 103 C.L.R. 314. The Court was there concerned with a section, not dissimilar in form from that in question here, of the New South Wales Workers' Compensation legislation. The differences that there are between the two provisions are not material. It should be observed, however, that the facts of the case involved there being a voluntary rather than an involuntary interruption of or deviation from the worker's journey. It follows that the dicta to which I am about to refer may be explained because they were pronounced in the context of that case. That was the submission about them which was made by counsel for the appellant. But the dicta appear in the judgments of Dixon C.J. and Fullagar, Menzies and Windeyer JJ. One would not lightly depart from them even though they might not be strictly binding.

Dixon C.J. referred (p.320) to what had been said by the Full Court of the Supreme Court of New South Wales in the judgment appealed from; (1957) 57 S.R.(N.S.W.) 614 at p.618. The Court had said:

"What it deals with (the New South Wales section) are the hazards of the journey and whether those hazards have or have not been increased to a material extent by the worker's action in interrupting his normal journey to and from his place of employment. If he, for his own purposes, substantially interrupts his normal journey he is no longer to be regarded as being in the course of his employment unless it be shown that that interruption did not, of itself, materially increase the risk of injury during or after that interruption."

The question in Scobie's case involved the proviso concerning increased risk of injury after an interruption or deviation. That is not a matter with which I am at the moment concerned. For my purposes the important fact is that Dixon C.J. expressed no disagreement with the dictum from the judgment of the Full Court which he had quoted. Fullagar J. (p.325) expressed positive agreement with it. Menzies J. appears to have taken the same view. He said (p.328):

"The emphasis of the proviso is not upon the cause of the injury but upon the increased risk attached to the worker's departure from his normal journey in one of the ways specified . . . . . . "

The emphasis is mine. Windeyer J. said (p.330):

"The policy of this is obvious. A worker who, for his own purposes, interrupted his normal journey or deviated from it thereby changed the nature of the risk which the employer was required by the statute to bear."

The emphasis is again mine.

Notwithstanding that the dicta to which I have referred need to be read in the context of the facts of the case with which their Honours were dealing, they provide a powerful indication that interruptions and deviations referred to in a provision of this kind were to be interruptions and deviations brought about by the worker's own voluntarily made decision to interrupt or to deviate from his ordinary journey. With respect, they are in accordance with my own view of the matter which, as I have said, is based upon the presence in the sub-section of the words "for a reason".

Counsel for the appellant relied upon another decision of the High Court, Arthur H. Stephens (N.S.W.) Pty. Limited v. Napoli (unreported). The judgments are ex tempore. The principal judgment was delivered by Barwick C.J., with whom McTiernan, Kitto, Menzies and Windeyer JJ. agreed. The case was one which again concerned the New South Wales legislation. The worker there went to a garage where he stayed for a considerable time in order to have his bicycle repaired so that he might continue on his way home. The Chief Justice said:

"In my opinion, he (the trial judge) ought to have held that this constituted no substantial interruption of his journey. What occurred at the garage was, in my opinion, no more than a halt in the progress of the worker's journey homewards. He did not turn aside to engage, however briefly, in any other activity than "journeying home. The halt so far as he was concerned was involuntary; none the less so because, at least in theory, he might have sought other means of transport than his cycle to finish the journey. No doubt there may be occasions where an involuntary cessation of journeying will amount to a relevant interruption of the journey: but, in general, in my opinion, such an interruption will be the result of a voluntary act on the part of the worker. The provision of the Act as to injury received in the periodic journey is for the benefit of the worker: the qualification as to a substantial interruption or deviation ought to be construed as in general involving conduct of the worker."

Counsel for the appellant relied upon the use by his Honour of the words "in general" which I have emphasised. In counsel's submission his Honour was deliberately leaving open the question of whether an interruption or deviation, within the meaning of the provision, was voluntary as distinct from involuntary. In the Stephens case the question of whether the interruption was voluntary or involuntary was more germane to the issue than was the case in Scobie where the interruption or deviation was plainly a voluntary one. But the fact is that the Chief Justice, with whom all other judges agreed, took the view that the interruption was involuntary and thus outside the section. I would not myself place any more importance upon the use by his Honour of the words "in general" other than that the judgment was an ex tempore one and his Honour was, very naturally, concerned that he did not make his statements in too absolute a form. In my opinion the Stephens case, rather than being an authority against the respondent here, tends to favour her. The Court did not regard the worker's enforced stop at the bicycle repair shop as an interruption. It was, to use the Chief Justice's words, "no more than a halt in the progress of the worker's journey homewards. He did not turn aside to engage, however briefly, in any other activity than journeying home". Nor did the respondent here. Her prolonged stay in the area of her employer's premises was forced upon her against her will by the actions of her husband earlier described.

Counsel for the appellant foresaw the strength of the argument against his submission that an interruption could, for the purposes of the sub-section, be an involuntary one. He sought to say, notwithstanding the evidence of how the respondent was detained and injured, that the interruption was one voluntarily undertaken by her. The basis for this submission was the respondent's knowledge of her husband's propensity for violence and the fact that he had been with her drinking whilst she did her work. It was established that there was a telephone available to her in her employer's premises. The respondent had used it to ring her children earlier in the evening. It was submitted that she must have known that by going outside it was likely that she would be subjected to interference and possible injury and that this conduct on her part, reckless as it was in her own interests, amounted to a voluntary interruption of her journey.

I confess that I do not understand this submission. It seems to be an attempt to import into the relevant provision some aspect of the doctrine volenti non fit injuria. It is said, because of the facts earlier mentioned, that the respondent voluntarily assumed the risk of injury by her husband. I have no doubt that it would have been wiser for the respondent to have stayed inside her employer's premises and used the telephone, but I am unable to perceive why her lack of wisdom in this regard made her conduct during the time of interruption to her journey voluntary. She was on her way home. She was prevented from continuing her journey by her husband. What he did was done entirely against her will.

It must be remembered that the legislation is workers' compensation legislation. The clear policy of the Act is to entitle workers to compensation notwithstanding that they may have been the authors of their own misfortune. There are some circumstances in which workers are denied compensation because of their serious and wilful misconduct (s.7(3)). That provision has no application in the present circumstances but I mention it to show that when the legislature intends that compensation shall not be recoverable due to a worker's fault, it says so clearly. Furthermore, even in the circumstances to which that section applies, he is not deprived of compensation unless his conduct is serious and wilful.

For the reasons I have given, I am satisfied that the respondent's journey was not the subject of any interruption within the meaning of s.8(2) of the Ordinance. Accordingly, it is unnecessary to consider whether she would bear the onus of establishing, assuming there to have been an interruption, that the risk of accident was materially changed or increased as the result of what occurred. Nor is it necessary to consider whether, questions of onus aside, such risk was in fact materially changed or increased.

It remains to consider whether, upon the evidence to which I have referred, the respondent was "travelling" from her employment within the meaning of s.8(1). The word "travelling" is defined in s.8(2) but my rejection of the appellant's submissions based on that sub-section does not conclude the matter against him, although it tends to do so. That is because, although the expression "travelling" is defined in the sub-section, it is defined only to the extent that it requires the journey to be by the shortest convenient route and excludes the substantial deviations and interruptions with which I have dealt.

A starting point for the consideration of the problem is to observe that the only deviations and interruptions which are excluded are voluntary ones. Involuntary deviations and interruptions, for the reasons already given, are not excluded. If a person on his way home by the shortest convenient route is halted or diverted as, for example, because he is in a bus or train which is hijacked, he will have been halted or diverted against his will. He will not fail in a claim for compensation because of any operation which s.8(2) has. Nevertheless the question remains, did he cease to "travel" from his employment. Certainly he will not have ceased to do so if his conveyance is halted or diverted as the consequence of mechanical breakdown or industrial action. The Stephens case is authority for that proposition. The difference between that type of case and one such as the present is that here, as would also be the case with the hijacked bus, the workman has been delayed against his will by the unlawful conduct of a third party. I have reached the conclusion that that circumstance can make no difference. The respondent left her place of work intending to go home. She began her journey. She was waylaid and prevented from continuing it by the conduct of her husband. But at no time did she cease to travel from her employment to her home any more than would the bus passenger taken well away from his normal route home by a hijacker. He could quite accurately say to his neighbour the next morning, "Do you know what happened to me on the way home last night?".

That that was the way the draftsman of the legislation looked at the matter is clear when one considers that he thought it necessary to exclude some deviations and interruptions. If he had had a different view of the meaning of the word "travelling" he would not have found it necessary to exclude them. He would have concluded his definition with the words, "by the shortest convenient route for the journey".

It may be that there could be cases where a worker, through no voluntary act of his own, ceases to travel to or from his employment. I do not wish to express a concluded view on that question. For present purposes it is enough to say that this is not such a case. The respondent at no time ceased to travel from her place of employment to her home. For the reasons I have given the appeal, insofar as it concerns liability, should be dismissed. I turn to the question of incapacity.

The evidence on that question has been left in a rather unsatisfactory and uncertain condition. Medical certificates by two doctors were tendered. One was called to give oral evidence. It is convenient to refer to the medical evidence first of all. Dr. Kitchin is an orthopaedic surgeon. He did not see the respondent until 28 March, 1977. He said that the fracture of the ankle had been treated by open reduction and the insertion of a screw in October 1975. In March 1977 the respondent complained of a painful ankle but Dr. Kitchin thought that she had a good range of ankle movement. Arrangements were made for an operation to remove the screw. This was performed satisfactorily on 4 May, 1977. Dr. Kitchin saw the respondent on 19 May, 1977. He said that there was evidence of post-traumatic degenerative arthritis of the ankle joint and that "her current disability" was permanent. He added that he would anticipate a deterioration in the condition of the ankle joint in the years ahead. I would assume that because of the arthritic condition which had developed and the doctor's reference to "current disability" he accepted that the respondent suffered from a painful ankle, although it is true that that complaint was recorded as having been made in March 1977 before the screw was removed. Dr. Kitchin gave oral evidence before the magistrate on 3 July, 1978.

Dr. Kitchin's report is dated 13 September, 1977. He saw the respondent again on 11 April, 1978, and 13 June, 1978. In his oral evidence given on 3 July, 1978, he said that at the examination held on 13 June, 1978, the respondent's complaint was of ankle pain, ankle swelling and limitation of ankle movement. His examination revealed that she had swelling around the joint and that both upward and downward movements of her foot were restricted and painful. An X-ray showed, amongst other things, disturbance of the articular surface and a secondary osteo-arthritis. Dr. Kitchin thought that the respondent would be restricted in her ability to stand for prolonged periods and also in her ability to walk. He was asked about climbing stairs and said that if the respondent had to do it on one or two occasions a day there would be no problem, but if it were a repetitive exercise it would be painful. He said that carrying a bucket of water over a short distance would cause no particular problem. In cross-examination the Doctor said that the respondent's disability was permanent and that she was not fit for work which involved a great deal of walking, moving about and standing. He said that weight bearing on the leg and repetitive movements of it would both cause pain.

Dr. Greenman was not called to give evidence but his report of 12 June, 1978, was tendered. His report adds nothing to the evidence about the ankle given by Dr. Kitchin. No medical evidence was called by the appellant. In the course of his submissions counsel for the appellant before the magistrate said that his client in fact had some medical evidence but that it did not take the matter any further than Dr. Kitchin's evidence. He added:

"It is clear that the applicant suffered a fracture of the tibia and fibula and also of the ankle bone, and the respondent does not argue on that medical issue. It perhaps says, and it does say, I think, that she is capable of doing some work".

The principle to be applied in determining the question is that laid down by Lord Loreburn L.C. in Ball v. William Hunt & Sons Limited (1912) A.C. 496 at pp. 499-500, where his Lordship said:

"I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch".

There have been many dicta by distinguished judges since his Lordship said what he did but unless there be legislation in a different form from that in question here (I instance s.11 of the Workers Compensation Act 1926 (N.S.W.)) what his Lordship said remains the law.

The respondent herself said that she had not worked since the accident. She tried to get a job after the removal of the screw. She went to the Commonwealth Employment Office and asked for light work. She also said that she went to the appellant's home and talked with his wife about a job house cleaning. She was told there was no such work available. Later she was offered a job by the Commonwealth Employment Service for one day's work of one to three hours. She said that she did not accept the offer because she had difficulty in getting suitable transport to work. In cross-examination she said that she wanted work of one or two hours a day. She asked for light work. She also said that she had been able to do normal housework at home at that time. The time was put as being before Christmas 1977. It is on the basis of the respondent's evidence that she was able to do her normal housework and had asked both the appellant's wife and the Commonwealth Employment Service for light cleaning work that it is submitted that she was partially incapacitated only after November 1977.

Before coming to deal with the submission which was made there is some further material to which I should refer.

After he had closed his case counsel for the respondent sought to call before the magistrate the Director of the Commonwealth Employment Service. He said the purpose of his evidence would be "to give some evidence relating to an application for employment by Mrs. Glad". Counsel for the appellant said to the magistrate that he did not think that this was a matter in dispute. There was then some discussion as to whether the respondent had given evidence of an application for employment after which counsel for the appellant said, "I am not putting in dispute about the applicant's attempts to get jobs". Counsel for the respondent then said that there was no point in calling the evidence and it was not called.

Of the proposal to call the Director of the Commonwealth Employment Service his Honour said:

"It seems clear enough that the purpose of calling the Director of the Commonwealth Employment Service would have been to obtain evidence from him that Mrs. Glad had applied for light work which she was capable of doing but that there was no work of that nature available to a person with her disability. It would then have been clear that the accident had changed Mrs. Glad from an employable woman into a woman who was unemployable in Canberra in 1978."

Counsel for the appellant before us submitted that there was no warrant for the assumption made by his Honour that the evidence would have established that there was no work of a light nature available to a person with the respondent's disability. I am inclined to agree with that submission. I do not think that the problem is overcome by reference to paragraph 6A(b) of the Fourth Schedule to the Ordinance which provides that the Court is not bound to act in a formal manner and is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks fit. It would seem to me that if a court intends to rely on this provision it ought to say so and say what its sources of information are. Furthermore neither the magistrate nor the learned trial judge was a specialist tribunal. It was without some of the advantages which such a tribunal has. That was a matter adverted to by Woodward J. in Ruiz v. Canberra Rex Hotel Pty. Limited (1974) 5 A.C.T.R. 1 at pp.7-8. I respectfully agree with what his Honour has there said in that regard.

Notwithstanding these views, however, I do not think that the submission which the appellant has made has any ultimate significance. My conclusion in that regard arises from a consideration of what the learned magistrate himself said about the material in question in his judgment. He referred to the respondent's evidence about making the application to the appellant's wife for work and continued, "and also Mr. Lunney (counsel before the magistrate for Mrs Glad) was going to call evidence of her efforts at the Commonwealth Employment Service to find employment. Mr. Nock (counsel for Mr. McGale) clearly indicated that he was no in dispute on that particular matter". That is all the learned magistrate said about it. He did not therefore rely upon the material in the same way or to the same extent as did his Honour. He took no more from it than the words used by counsel would themselves indicate was intended. It is his decision that is in question and the matter that must be decided is whether he was in error in concluding that the respondent was totally rather than partially incapacitated. Accordingly the acceptance of the submissions made by counsel for the appellant concerning the unwarranted assumption made by his Honour will not take him far unless he can establish that on the evidence the finding should have been one of partial rather than total incapacity.

I turn then to consider the way in which the learned magistrate approached the matter. The essential paragraph of his judgment is as follows:

"Taking into account the decision of Ruiz v Canberra Rex Hotel Pty Limited and bearing in mind the earlier decisions on the particular question of incapacity and taking into account the current situation and the attempts made by Mrs Glad to find employment and particularly the medical evidence I am satisfied that the incapacity from the date of the injury which was sustained early in the hours of 13 October 1975 and continuing up to the present time because the prognosis of Dr Kitchin is that the situation will not improve and it was the same in 1977. I see no reason to find differently that it would not continue now but from the date of the injury up to the present time Mrs Glad is in fact totally incapacitated as a result of the injury occasioned either late on 12 October 1975 or early hours of 13 October 1975."

I said at the commencement of this discussion that the medical evidence was unsatisfactory. It is unsatisfactory because counsel failed to elicit from Dr. Kitchin evidence of whether the respondent was capable of doing light cleaning work of the kind she sought at the end of 1977. But the injury she has suffered to her ankle is serious and will have a permanent and serious effect on her for the remainder of her life. She is restricted in walking, standing and in the movement of her ankle. She is restricted because she suffers pain in it when she does these various things by reason of the osteo-arthritis which has developed. Having reflected on the matter I have reached the conclusion, notwithstanding the gap which I believe there is in the medical evidence, that the finding of the learned magistrate that the respondent was totally incapacitated should not be disturbed.

For the reasons I have given I would dismiss the appeal and order the appellant to pay the respondent's costs thereof.

I agree with the reasons for judgment of Sheppard J. and have nothing to add.

Peter McGale (the "Appellant") appeals, save in respect of one matter not now in contention, to this Court from a judgment of the Supreme Court of the Australian Capital Territory given on appeal from an "order and award" made by Mr. R.J. Cahill, S.M., sitting as arbitrator pursuant to the provisions of the Workmen's Compensation Ordinance 1951 of the Territory (the "Ordinance") whereby he upheld a claim for compensation under the Ordinance made by Raiga Irene Glad (the "Respondent"). Since neither party sought leave to adduce further evidence before the Supreme Court, the appeal was determined on the evidence given before the learned Magistrate. That evidence disclosed that the Respondent was born in Finland on 18 August 1938, arrived in Australia on 17 February 1970 when aged thirtyone and a half, was not as at 28 January 1978 naturalised, and had worked in Australia, although not continuously, only as a kitchenhand or cleaner. Widowed on 25 December 1975, she was at the time of the injury in respect of which the claim for compensation was made separated from her husband.

The learned Magistrate found (and it is not in dispute) that on the evening of Sunday, 12 October 1975, the Respondent had completed cleaning duties being performed by her for the Appellant at Churchill House. For most of the period during which she was working on that evening, her husband who had in the past exhibited violence towards her was present with her in the building. When she began to leave the building her husband accompanied her. He then assaulted her. It is not disputed that, to use the learned Magistrate's words, "at the time any violence occasioned to her commenced she had in fact completed her duties, had in fact commenced to leave the building, had in fact intended to go home and that is when the argument leading to the violence commenced." He went on,

"Now, in relation to the matter it is indeed hazy as to what happened from that point on but it appears there was some striking, some argument, some violence exhibited. Mrs. Glad ran from the outside of the building of Churchill House. Her memory of exactly what occurred is a little bit hazy. She says she fell on a number of occasions, was struck heavily and finally her recollection in some parts of the statement is of seeing a car. Her evidence on oath was that she cannot say she saw a car she just saw lights and that is the last thing she remembers then woke up in hospital."

As appears from the statements of Gloria Sandra Bickle and David Mason Rae admitted in evidence without objection, in the early hours of Monday, 13 October 1975 the Respondent was found on the roadway lying some four feet from and parallel to the kerb of Lowanna Street somewhere near the ramp leading to the Churchill House carpark. She had a great deal of blood on her lower right leg and foot and when Mr.Rae tried to move her blood spurted in what appears to have been a considerable quantity from her leg. There was there present a man whom the learned Magistrate found to be the Respondent's husband.

The learned Magistrate concluded that either because of the attack on the Respondent by her husband or because of being struck by a motor vehicle she sustained a serious injury to her leg. He was unable to attribute her lack of recollection of the incidents which took place between the time of her leaving Churchill House with her husband and her subsequent regaining of memory to a specific cause, being prepared to attribute it either to her having been knocked unconscious or to her suffering from amnesia. He found that there was no evidence to suggest that there was any physical deviation by the Respondent on her journey home. He was satisfied that an attack on Mrs. Glad occurred as she commenced to leave the building "causing her to flee resulting in an accident either from the actual attack itself or from the motor vehicle colliding with her". He had no reason to suspect that she did anything but flee and was satisfied that she was "either suffering from amnesia or subject to an attack or was in fact unconscious" up to her discovery by Mr. Rae and Miss Bickle.

It was conceded in this Court that

"(the Respondent) was, on the findings made which we do not challenge, at all times the innocent party, that her husband became argumentative with her on the premises, that she did not egg him on or anything of the sort, but that he commenced to abuse and assault her on the premises, and then immediately that she got outside he commenced to beat her up for what was a substantial period of time, and that she fled from him."

The learned Magistrate found formally, if somewhat elliptically and not quite accurately, that personal injury by accident arising out of or in the course of her employment was caused to the Respondent while employed by the Appellant on 13 October 1975. To make such a finding required resort to s.8 of the Ordinance. Relevantly it provides:-

"8.(1). Where personal injury by accident is caused to a workman while he is travelling to or from -

(a) his employment . . .

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 . . . , 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." (Emphasis mine).

The Appellant's contention was that there had not been established in him any liability under s.8 of the Ordinance.

It was submitted on his behalf that there was such an interruption to the Respondent's journey as to deprive her of the benefit of the travelling provision and that it mattered nothing that the interruption to her journey was involuntary. Both in this Court and in the Supreme Court it was accepted, correctly as I think, that the onus of proving that there had been an interruption of the Respondent's journey lay upon the Appellant. See Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen, [1945] HCA 22; (1945) 70 C.L.R. 635, particularly at p.644, per Dixon, J. (as he then was); Dowling v. Bowie, [1952] HCA 63; (1952) 86 C.L.R. 136 at pp.139 and 140, per Dixon, C.J., Fullagar and Kitto, JJ., concurring; Vines v. Djordjevitch, [1955] HCA 19; (1955) 91 C.L.R. 512 at pp.519 and 520; Makzymczuk v. Gillespie Bros. Pty. Ltd., (1957) 98 C.L.R. 532 at p. 528; and Clarke v. Smith, (1951) 25 W.C.R. (N.S.W.) 85.

In the Supreme Court, as appears from the judgment of Connor, J., it was contended that the Appellant proved an interruption by showing that the Respondent, after leaving work, embarked on a voluntary argument with her husband, that this constituted a substantial interruption to her journey home and that her injury was caused during or after this interruption. The contention in that form was not and could not have been put in the light of the concession quoted above. It was, however, put in this Court that, despite that concession, it was possible to establish an interruption made by the Respondent in that she, being aware of her husband's violent propensities, left Churchill House where there were telephones which she might have used to call the police and voluntarily underwent the risk of the beating which she sustained and, so volunteering, interrupted voluntarily her journey. I do not think the submission valid. Let it be assumed, and I do not assume, that a workman may voluntarily interrupt his journey to or from his employment because, being aware of attendant dangerous circumstances, he risks the danger and interruption to his journey comes about. Before a finding of voluntary interruption could be made there must be at least, in my opinion, evidence both of knowledge of the danger and of the voluntary assumption of the risk involved with full knowledge that assumption of the risk might reasonably be expected to lead to interruption to the journey.

In the present case there would need to have been, in my opinion, some indication that the Respondent had directed her mind at the relevant time to the character of her husband, to the violence she had previously suffered at his hands and to the relative safety which would have been afforded her by staying within a building with communications, that she then drew the inference (mere grounds for drawing the inference with nothing further would hardly seem enough) that to leave would in the circumstances involve real risk of assault which in turn would necessarily involve a substantial interruption. Not only are such inferences from the evidence not inescapable but they cannot, in my opinion, properly be drawn at all.

In the course of his judgment, Connor, J., said,

"It must be borne in mind, moreover, that there was no evidence as to the time when Mrs. Glad suffered the injury to her foot. It may have been inflicted by her husband within five or ten minutes after she left work; or it may have been inflicted by a passing car five or ten minutes before she was found, presumably at about 12.30 a.m. the following morning. --- In the circumstances the employer could not prove on the balance of probabilities the duration of any interruption which occurred before the injury was received. It was not therefore possible to say whether any such interruption was substantial in the temporal sense."

I would, with respect, agree with what his Honour has said but I would go further.

There is, in my opinion, strong ground for holding that at the relevant time the Respondent was "travelling from her employment" as that phrase is properly to be understood, that she suffered injury including the injury to her lower leg while so travelling and that the Appellant upon whom the burden of proof lies has not established any interruption to the journey during or following which some of her injuries, including particularly the injury to her leg, occurred. Indeed, it might be thought that the fact that blood spurted from the Respondent leg when she was moved by Mr. Rae could indicate that earlier substantial bleeding had occurred but with the passage of time had subsided because of clotting. Nothing, however, seems to have been put to expert medical witnesses on this aspect and it would be unsafe to attempt to draw any helpful conclusions from such a circumstance. It may be noted, at this point, that the case is not unlike that of Clarke v. Smith, (1951) 25 W.C.R. (N.S.W.) 85, earlier referred to. The case was not, however, fought on this basis by either side but rather on the ground that the injury had been incurred during an involuntary interruption. It therefore seems inappropriate to decide this appeal on other than the grounds chosen by the parties.

There is no ground upon which it might be found, in my opinion, that the injuries sustained by the Respondent took place during any substantial deviation from the shortest convenient route for the journey. She was found within a few yards of the entrance to a ramp leading to a car park servicing the building where she had been working and whence she had come. Nothing was put to her to suggest that she was on a route different from that normally taken by her when travelling home from work. In any event any such deviation as there may have been could not, in the circumstances have been said to be substantial. The question then is whether, when personal injury by accident is caused to a workman while travelling to or from his employment during or after any substantial involuntary interruption of the journey, he is to be deprived of compensation in respect of that injury.

The definition of "travelling" in sub-s.8(2) of the Ordinance excludes "any substantial interruption of the journey --- made for a reason unconnected with the workman's employment". The phrase "made for a reason unconnected with the workman's employment" is, in my opinion, to be read as applying distributively to the interruption and the deviation referred to in the sub-section. When one describes the action of a person as being "made for a reason" one normally ascribes to that person the voluntary intention to carry out the action in question. At first sight and subject to the dictum of Barwick, C.J., in Arthur H. Stephens (N.S.W.) Pty. Ltd. v. Napoli, noted (1969) 43 A.L.J.R. 452 and quoted hereafter, I see no reason why the legislature intended any different result in sub-s.8(2). It may be contended that it is conceivable that an interruption made to such a journey might properly be held in circumstances which, in my opinion, would be very rare and which do not readily come to mind to have been made for a purpose unconnected with the employment when the interruption was made involuntarily. It seems to me, however, that, although as a matter of language such a construction might be attributed to the phrase that was not in this case the general intention of the legislature. On its face the definition of "travelling" in sub-s.8(2) is all-embracing excluding only, except in certain circumstances, substantial interruptions and deviations when made for specified reasons. The method of definition is in marked contrast to that in s.6 of the Ordinance (the definition section) where the commonplace phrase "unless the contrary intention appears" is used. The contrast in the draftsman's approach makes it clear, in my opinion, that the workman is to have the benefit of the travelling provisions except in very specific circumstances, there being no room for further implied exceptions unless in very exceptional circumstances the existence of which forces the implication and which are not, in my opinion, present here.

The view that the interruption or deviation is to be shown to be a voluntary one was taken for the purposes of the case by Wall, J., in Mathews v. Welded Products Limited, (1955) 29 W.C.R. (N.S.W.) 145. When the question came to be considered in the High Court in Arthur H. Stephens (N.S.W.) Pty. Ltd. v. Napoli, (supra), Barwick, C.J., speaking for the Court, said,

No doubt there may be occasions where an involuntary cessation of journeying will amount to a relevant interruption of the journey: but, in general, in my opinion, such an interruption will be the result of a voluntary act on the part of the worker. The provision of the Act as to injury received in the periodic journey is for the benefit of the worker: the qualification as to a substantial interruption or deviation ought to be construed as in general involving conduct of the worker."

It was submitted that the use by the learned Chief Justice of the words "No doubt there may be occasions where an involuntary cessation of journeying will amount to a relevant interruption of the journey" indicates that the words being here considered are not to be taken as meaning absolutely that the relevant interruption or deviation must be voluntary. I do not think this submission succeeds in this case. No doubt the learned Chief Justice, delivering judgment ex tempore, as a full copy of the reasons for judgment made available during the course of the hearing shows, was concerned lest an absolute statement be made which might not ultimately be applicable to every case dealing with a similar provisionand coming before a workmen's compensation tribunal. Indeed, one might expect that similar words would have appeared in a judgment which had been reserved for consideration. But what his Honour the learned Chief Justice said means, in my opinion, no more than that he has left ajar a door for what would be, I think, a remarkable exception.

For these reasons I think the Appellant has failed to displace the primary meaning to be attributed to the word "travelling" in the sub-section.

The Appellant submitted also that there was no evidence to show that the Respondent was totally incapacitated after 2 November 1977. It was conceded that there was, on the evidence, total incapacity to 2 November 1977 but contended that it must have ceased not later than that date.

I have referred earlier to the evidence which showed that the Respondent was Finnish, arrived in Australia when aged thirtyone and a half, was not as at 28 January 1978 naturalised and had worked in Australia, although not continuously, only as a kitchen hand or cleaner. The transcript of proceedings before the learned Magistrate indicates that in giving evidence she needed an interpreter although it seems clear that in some circumstances she could understand English sufficiently. There was, for example, a statement taken from her by an insurance investigator who seems to have needed no interpreter but who seems also to have dealt patiently and carefully with the Respondent.

Dr. Kitchin, an orthopaedic surgeon called on behalf of the Respondent, first saw her on 28 March 1977. He found that the fracture of her ankle which had taken place on 12 or 13 October 1975 had been treated by open reduction and the insertion of a screw. When first seen the Respondent complained to Dr. Kitchin of a painful ankle in which, so he thought, she had a good range of movement. An operation for the removal of the screw was performed satisfactorily on 4 May 1977. Reporting on 13 September 1977, Dr. Kitchin described the Respondent's ankle as showing evidence of post-traumatic degenerative arthritis. He expected deterioration in the condition of the ankle joint in the years ahead and noted her then current disability as permanent. Dr. Kitchin doubted that she would have been fit for work between 1975 and 1977. He stated that x-rays taken in June 1978 showed deterioration in the condition of her ankle joint compared with that shown by x-rays taken in March 1976. On 13 June 1978 her complaints about her ankle were as earlier made and on physical examination Dr. Kitchin found no change. Giving evidence on 3 July 1978 he described her as being "not fit for work that involves a great deal of walking or moving about". Asked

"Is it the standing in one position that is likely to cause her trouble or is it the movement that is likely to cause . . . ?", he replied,

"Well, it's two factors: one is weight-bearing on the leg - standing on the leg for a prolonged time: the other one is repetitive movements cause pain."

The Appellant called no medical evidence.

The Respondent gave evidence that she sought some light house cleaning work from the Appellant's wife to be told that there was none. She gave evidence that she also went to the employment service to get some light work for from 1 to 2 hours. Once that service offered her work for "one day from 1 to 3 hours" but she did not accept the offer for lack of suitable transport. No attempt was made to elucidate precisely what the Respondent meant by her description of that offer but on its face it seems to me that it ought to be interpreted reasonably only as an offer of work for 1 to 3 hours on one day only.

After the Respondent's case was closed her counsel sought leave to re-open her case "to call the Director of the Commonwealth Employment Service to give some evidence relating to an application for employment by (the Respondent)". Counsel for the Appellant said, "I am not putting in dispute about the Applicant's attempts to get jobs." The effect of what was conceded by counsel for the Appellant was debated in the Supreme Court and in this Court. The learned Magistrate said of it that

"(Counsel for the Respondent) was going to call evidence of her efforts at the Commonwealth Employment Service to find employment. (Counsel for the Appellant) clearly indicated that he was not in dispute of that particular matter."

Connor, J., in the Supreme Court, took the view that the purpose of calling the Director of the Commonwealth Employment Service would have been to obtain evidence from him that the Respondent had applied for light work which she was capable of doing but that there was no work of that nature available to a person of her disability. His Honour stated that it would then have been clear that the accident had changed the Respondent from an employable woman into a woman who was unemployable in Canberra in 1978.

His Honour's view of the incident was challenged in this Court on the basis that there was no concession that the evidence sought to be led would have indicated lack of work for a person having the Respondent's disability. I think the result of the incident is that the Appellant conceded that the Respondent had made attempts to find work suitable to her condition. I do not think that the concession by his counsel amounted to a concession that such work was unavailable in Canberra in 1978. Nevertheless, it seems to me that the inference might properly be drawn that she had made attempts to get work suitable to her condition and that those attempts had failed except for the one offer above referred to. It is true that her counsel referred to evidence of "an application for employment" but the concession was in clear terms - "about the Applicant's attempts to get jobs". Since evidence has been led concerning a specific attempt to get work which resulted in an offer it seems to me more likely than not that it was being conceded by the Appellant's counsel that there were other attempts of which no evidence was led.

In giving reasons for his award as to incapacity the learned Magistrate referred to and relied on Ruiz v. Canberra Rex Hotel Pty. Ltd., (1974) 5 A.C.T.R. 1, a decision of the Supreme Court of the Australian Capital Territory (Woodward, J.). But the question of the extent of incapacity is to be resolved by the application to particular sets of facts of guidance given by established authority. In Ball v. William Hunt & Sons, Limited, (1912) A.C. 496, Earl Loreburn, L.C., said at pp.499 and 500,

"In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.

I think this view is in accordance with previous decisions of the Court of Appeal. The principle is carefully discussed in Cardiff Corporation v. Hall, (1911) 1 K.B. 1009. And certainly the opposite view would leave a workman uncompensated for what may be very real and direct consequences of an injury."

In Ruiz' case (supra) Woodward, J. pointed out that the various workmen's compensation tribunals in the States acquire as specialist tribunals "an immense fund of information" on the availability of work and that fund of information may properly be used to supplement the evidence given in a particular case but his Honour also pointed out, at p.8,

". . . there is obviously an important distinction to be drawn between a tribunal which handles thousands of such cases every year and a judge or magistrate who deals with them at infrequent intervals. The principle does not alter - there is still a requirement to use general knowledge and common sense - but the use of sources of knowledge going beyond evidence given in the course of the hearing, calls for much greater caution in the case of the less experienced tribunal."

There is nothing to suggest that the learned Magistrate made use of knowledge acquired outside the evidence led except in a vague and limited way.

With the guidance afforded by authority it seems to me that although the evidence was somewhat meagre there was enough to show that the Respondent was totally incapacitate from 3 November 1977 onwards. She had come to Australia when aged thirtyone and a half, her command of English was poor, she had performed none but the most menial physical tasks in Australia, tasks requiring a degree of physical fitness which on the medical evidence she plainly lost as a result of her injury and she had attempted to gain work without success. The one offer of employment made to her was of such a meagre kind as to be, in my opinion, not greatly different in kind from that referred to by Lord Macmillan in Birch Brothers Ltd. v. Brown, (1931) A.C. 605 at p.630, as a job "merely nominal". Some limited use might properly have been made by the learned Magistrate of the existing state of the labour market in Canberra at the relevant time but it seems to me that even without use of such knowledge there was sufficient evidence of total incapacity at the relevant time.

I would dismiss the appeal with costs.