Re Commonwealth of Australia v Roger Anthony Pearson [1982] FCA 16 (23 February 1982)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: ROGER ANTHONY PEARSON
No. G81 of 1981

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Smithers(2), Fox(1) and Sheppard(3) JJ.

HEARING

SYDNEY
23:2:1982

ORDER

Appeal dismissed with costs.

DECISION

This is an appeal from a decision of a judge of this Court (Franki J) who heard an appeal under s.95 of the Compensation (Commonwealth Government Employees) Act 1971 from a decision of a compensation tribunal appointed under that Act.

2. The appeal to his Honour was on a question of law only. His Honour found that on the facts the conclusion of the tribunal awarding compensation to the present respondent was one it was entitled to reach and he dismissed the appeal to him.

3. It has been submitted to us that the decision of the tribunal was not open to it because the respondent was not, when injured, in the course of his employment. He was and is a petty officer with the Royal Australian Navy and as a member of the defence force is deemed by s.7 of the Act to be a person who, for the purposes of the Act, is employed by the Commonwealth.

4. The respondent was injured while skiing in the Perisher Valley on 10 July 1978. He was at the time of his injury on leave but was training with the encouragement of superior officers to be a member of the navy ski team. Trials to select the team had been carried out at the Perisher Valley on the two preceding days. These took place in the presence of his superior officers under arrangements made by them and to a degree under their supervision. Some training ing was also done on 9 July.

5. A final decision was not then made as to the constitution of the team but the senior officer, Captain Read, had given the respondent an indication that he would probably be in the team and had at the same time told the respondent of some weaknesses in his skiing and requested him to practice some more during the ensuing week.

6. The skiing he was engaged in at the time of his injury, which was a compound fracture of the lower left leg, was part of his training and not such as would normally be regarded as simply recreational.

7. The facts are set out in some detail in the judgment appealed from and in the decision of the tribunal and I shall not repeat them. They have not been challenged by the appellant although both parties have turned to the evidence for the purpose of giving a fuller understanding of the facts. The decision was one of fact compounded of many factual elements.

8. The evidence discloses the significance in the Navy, particularly for one employed as was the respondent, of physical fitness and participation in sport. The training of members for a ski team was important and the process of selection was a necessary incident. Participation as a member of the team would, as I understand, have been an activity in the course of the respondent's duty.

9. The respondent was encouraged to train, he had subjected himself on the two days immediately before his injury to the selection process and had been given specific advice by a superior officer as to what he should do on the following days to improve his style and performance. It was while carrying out this advice that he was injured. He was on leave, and this is an important consideration. Not all that he did during the period of his leave could properly be regarded as being in the course of his employment. However, the fact that he was on leave is not necessarily fatal to his claim. It is to be remembered in this connection that as a member of the permanent naval forces he was subject to naval discipline at all times - see s.111 of the Naval Discipline Act 1957 (Imp).

10. There was evidence from more than one source that naval personnel were often expected to take leave to train for competitive sports and in particular ski competitions. The taking of leave did not necessarily mean a temporary cessation of his employment.

11. I am of the view that it was open to the tribunal to reach the decision it did, and that decision is supported by the facts as found by it. I would therefore dismiss the appeal with costs.

I have one observation to add, namely, that in my view the participation by the respondent in the team in the contemplated competition, in which team he had been informed he would in all likelihood be included, would have been an activity in the course of his duty. The particular training on which he was engaged when injured was practice in particular respects in which he had been encouraged to engage by a superior officer for the purpose of the particular duty referred to and was thus incidental thereto in a very direct sense. I agree to the order proposed.

I also agree with the order proposed and with the reasons which have been delivered by my brethren. I would add for myself that I would have thought that it might have been possible for the decision of the tribunal to be supported not only upon the basis of the second limb of s.27(1) of the Act, but also upon the basis of the first limb there-of. That was not a matter relied upon in the tribunal or in the court below and it was not a matter argued by counsel for the respondent. I therefore express no view upon it but as I say, it is a matter which, so it seems to me, may have been relied upon perhaps by the respondent. I agree that the appeal should be dismissed with costs.