Re Commonwealth of Australia v Robert Glen Staddon [1984] FCA 17; 1 FCR 95 (15 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: ROBERT GLEN STADDON
No. G237 of 1982
Administrative Law
[1984] FCA 17; 1 FCR 95

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1)

CATCHWORDS

Administrative Law - Commonwealth Employees' Compensation - Sailor on shore leave - Whether injury arose in the course of employment.

Compensation (Commonwealth Government Employees) Act 1971 - s.27(1).

Administrative Law - Commonwealth Employees' Compensation - Sailor on shore-leave - Whether injury arose in the course of employment - Compensation (Commonwealth Government Employees) Act 1971 s. 27(1). The applicant was at the relevant time an able seaman serving on "H.M.A.S. Melbourne" while it was in Jakarta, Indonesia, on a goodwill mission. When on shore-leave he was seriously injured when using a chute at a large swimming pool complex.

The Tribunal found that the applicant was injured in the course of his employment within the meaning of s. 27 (1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth), and the Commonwealth appealed.

The findings of primary fact made by the Tribunal were not challenged. The conclusions were challenged.

Held: that the appeal should be dismissed. It could not be said that the Tribunal was in error. A sailor on shore-leave in a foreign port is subject to tight naval discipline. Physical fitness, particularly in swimming is emphasised. The respondent returned to the ship each evening and the commanding officer encouraged sailors to go ashore during the day to avoid the discomforts of a ship in the tropics.

Danvers v. Commissioner for Railways (N.S.W.) [1969] HCA 64; (1969) 122 CLR 529 at 536- 537 and 544-545;

The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353, applied.

Per Fox J. The question of when an injury arises in the course of employment has been the subject of endless litigation for many years and there have been a great number of cases dealing with the topic. As I think has been commented upon, in some of the more recent cases there developed a tendency to give the words a more liberal meaning, in the sense of a wider construction, than had been the case theretofore.

HEARING

Sydney, 1984, February 15. 15:2:1984
L. Robberds Q.C. and M. Holmes, for the appellant.

G. K. Downes Q.C., C. E. O'Connor and M. J. Fernon, for the respondent.

Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Shephard & Shephard.

M. P. SPENCER.

ORDER

1. The appeal be dismissed with costs.

2. The matter be remitted to the Delegate of the
Commissioner to determine compensation in accordance
with the reasons herein.

3. Sub-paragraphs (ii) and (iii) of paragraph (b) of the
Tribunal's decision be set aside.

Appeal dismissed.

DECISION

I have reached a conclusion in this matter. I hope it shows no disrespect to the careful and helpful arguments that counsel have raised if I deliver my reasons forthwith.

2. The appeal is from the Administrative Appeals Tribunal and it concerns the application of the Compensation (Commonwealth Government Employees) Act 1971.

3. The applicant was at the relevant time an able seaman serving on H.M.A.S. Melbourne while it was in Jakarta, in Indonesia, on what has been described as a goodwill mission. When on shore leave he was seriously injured when using a chute at a large swimming pool complex. He had previously swum a distance of nearly a mile in the extensive surrounding pool.

4. The Tribunal has found that the applicant was injured in the course of his employment within the meaning of s.27(1) of the Act. It is submitted on behalf of the appellant that this conclusion was not supported by the evidence. Findings of primary fact made by the Tribunal are not under challenge. It is a question whether the conclusions reached, and particularly the ultimate conclusion just mentioned, are supported by those facts. These facts are carefully set out in the reasons given by the Tribunal and I shall not repeat them.

5. Four paragraphs containing comments and conclusions have been the particular subject of attention and I set those out. They are paragraphs 11, 12, 13 and 14:

"11. Obviously there would be difficulty in viewing
all conceivable activities of a sailor on shore leave
in a foreign port as arising in the course of his
employment. But having regard to the requirements of
Naval Orders and the Service's insistence on fitness,
it can I think be seen that this man was doing
something reasonably incidental to his employment in
seeking to increase or maintain his level of fitness by
engaging in strenuous swimming and relaxing vigorous
sport, after an arduous spell of duty in a torrid
climate aboard a markedly uncomfortable vessel then in
a foreign port.

12. Secondly, I am persuaded that the goodwill and
'showing the flag' aspects of the fleet's voyage are
not to be considered as in fact, restricted to the
presence and operation of the ships as a fleet; but to
be exemplified also by the bearing, discipline and
friendly behaviour to Indonesians of their crews when
ashore (as emphasized repeatedly in instructions given
aboard ship). The applicant was taken to and required
to remain in Jakarta, he was required and expected to
keep fit, he was required and expected to show himself
when ashore to be 'an ambassador' for his country, and
as part of that process he was authorised to go ashore
(obligatory in uniform) and he was (inferentially)
authorised to engage in reasonable sporting activities
while there as part of his duty to keep himself fit for
service aboard a vessel of known oppressive shipboard
living conditions which was then serving in the
tropics. I find as a fact that his duties were not
only those specific to his rank and technical
qualifications; but also included those germane to each
crew member of the fleet in Jakarta on this voyage of
'showing the flag' and carrying goodwill to the country
of Indonesia, in his own small but not unimportant way,
through his appearance in uniform and manly friendly
conduct among the country's residents.

13. If as I believe, it could be considered
reasonably related to the exigency occasioned by his
duties, for the applicant not only as part of the
special purpose of the voyage to move around in uniform
in conventional activities among the residents of
Jakarta, but in pursuit of his need to keep fit by
undertaking the strenuous exercise involved in swimming
the best part of a mile, it may I believe be taken as
reasonably incidental to that activity also to have
relaxed by recourse to the chute available at the
swimming complex. I consider the whole of his
activities, be it noted in the company of his fellow
sailors, at Jaya Ancol, a reasonable consequence of the
circumstances in which he was placed through the
performance of his duties; and they ought not be
considered as the pursuit of 'a purpose of his own'
(Humphrey Earl Limited v. Speechly 84 CLR at 133-134),
but as a matter of fact, things, happenings arising in
the course of his employment.

14. Having come to the conclusion that the facts
establish that the injury suffered by the applicant was
incurred during activities of such a nature as in the
circumstances were reasonably incidental to his
employment, and indeed arose in the course of his
employment, I consider the applicant entitled to
compensation in respect of it and that I should
therefore set aside the Determination the subject of
review."

Relevant facts appear directly or indirectly from what is stated in those paragraphs.

6. The question of when an injury arises in the course of employment has been the subject of endless litigation for many years and there have been a great number of cases dealing with the topic. As I think has been commented upon, in some of the more recent cases there developed a tendency to give the words a more liberal meaning, in the sense of a wider construction than had been the case theretofor.

7. A guide to the resolution of the question in this case which I have found helpful is that of Sir Garfield Barwick in Danvers v. The Commissioner of Railways of New South Wales (1922) 122 CLR, at pp 536-537. To that reference I might add one to the the judgment of Mr. Justice Windeyer in the same case at pp.544-545. Also of assistance in the present case are the authorities cited by Sir Garfield Barwick to which might be added the decision of the High Court in The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353.

8. The question in this case, like many similar cases, is not an easy one and the conclusion is a marginal one. However, I am impressed by the reasons set out by the Tribunal, and the facts referred to therein, in support of the conclusion that the injury did arise in the course of employment.

9. A fundamental matter which seems to me to set a context for the whole is that the injured man was serving in the navy on a ship then in a foreign port and that the ship was there to create a favourable impression on the part of the people of the country, both as to the existence and seeming efficiency of the Australian Navy and as to the quality of its personnel.

10. While in a foreign port, as I understand the facts as found, the discipline is relatively tight. The situation is not at all like one where there is a shore-based unit of the navy and sailors attend there day by day, having their homes in a suburb of some capital city. They are given short periods of leave. They are given it on certain understandings, made pretty plain by the officer commanding the ship, as to their behaviour and as to their dress, and other personal matters into which the navy in many other circumstances would not intrude. The leave can be cancelled and the sailors recalled to the ship at any time, and with the barest minimum of notice. As I understand it, the injured person in this case came back to the ship each night-time and set off on his leave in Jakarta during the day.

11. At the particular moment when his injury occurred he was riding a chute, which one is entitled to assume was a joyful activity; whether or not it involved much physical exercise, I do not know. He was, however, a person who had a particular skill at swimming and participated in competitive swimming. He belonged to a Service (not alone in this regard) which required a high degree of physical fitness on the part of those who might be called upon, perhaps at short notice, to go on active service. In the navy, not unnaturally, swimming receives particular emphasis.

12. There is more than one reason why the injured person in the present case should want to go for a swim, because the undisputed evidence is that the ship itself, particularly in a tropical area, was very uncomfortable indeed, at least for those whose quarters were below deck. From the point of view of the officer commanding the ship I have no doubt that he wanted to encourage people to go on shore on leave and obtain their relaxation and indulge in swimming of one sort or another which would give them some relief from the climate of the ship and which would perhaps have other advantages such as those I have already mentioned.

13. It seems to me, on the whole, that the tests stated in the cases to which I have referred, and particularly those set out in Danvers case, are satisfied in the present case.

14. A point was made of the fact the injured sailor was in fact going down a chute at the time of the injury and this was, on any view, catering for his own pleasure. I do not think one can divorce that sort of activity from the use of the swimming complex as a whole, and it is not at all foreign to the purposes I have been mentioning that he should have some enjoyment and that there should be some incidental activity for his pleasure.

15. Therefore I am of the view that the appeal should fail. It is agreed that para. (b), sub-para. (ii) should be set aside and it seems to me, although it is a trivial matter that (iii) should go with it.

16. The orders I will therefore make are that the appeal should be dismissed with costs, that the matter should be remitted to the Delegate of the Commissioner to determine compensation in accordance with my conclusions. I formally set aside sub-paras. (ii) and (iii) of para. (b) of the Tribunal's decision of 10 November last.