Re Arthur Keith Pridham v Commonwealth of Australia [1987] FCA 399 (6 November 1987)

FEDERAL COURT OF AUSTRALIA

Re: ARTHUR KEITH PRIDHAM
And: COMMONWEALTH OF AUSTRALIA
No. G9 of 1987
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - workman's compensation - member of the R.A.A.F. injured in fall while shaving preparatory to reporting for duty - whether injury arising out of or in the course of employment - whether injury after commencement of journey - "on call" arrangement.

Administrative Appeals Tribunal Act 1975

Compensation (Commonwealth Government Employees) Act 1971

Potts v. Commonwealth (1971) 18 FLR 128

Rowe v. Flinders Medical Centre (1978) 45 SAIR 285

HEARING

ADELAIDE
6:11:1987

Counsel for the appellant: Mr B. Beazley Solicitors for the appellant: Poveys

Counsel for the respondent: Mr R. White Solicitors for the respondent: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The appellant a member of the R.A.A.F. serving in Darwin was shaving preparatory to dressing in uniform and reporting for duty. While shaving he fell in the bathroom of the house he was occupying off the airforce base in Darwin. He injured his back and claimed workman's compensation with respect to this injury on the footing that he was either on duty at the time or had commenced the journey to his employment. The delegate of the Commissioner for Employees' Compensation rejected the appellant's claim under the Compensation (Commonwealth Government Employees) Act 1971. He applied pursuant to s.26 of the Administrative Appeals Tribunal Act 1975 to the Administrative Appeals Tribunal for a review of the determination of the Commissioner. The Administrative Appeals Tribunal affirmed the determination of the delegate and the appellant now appeals to this Court pursuant to s.44 of the Administrative Appeals Tribunal Act. This appeal may of course be brought on a question of law only (s.44(1)).

2. The grounds of the appeal are stated in the notice to be as follows -

"(a) The applicant's necessary preparations for
work commenced at an identifiable point whilst
inside his residence.
(b) The Tribunal erred in preferring untested
affidavit material to uncontested oral
evidence of the applicant.
(c) The Tribunal erred in law in:-
(i) used as evidence statements of counsel;
(ii) placed undue weight on affidavits
deposing to a search of records.
(d) The Tribunal erred in distinguishing Potts v.
Commonwealth (1971) 18 FLR 128 and Rowe v.
Flinders Medical Centre (1978) 45 SAIR 285.
(e) The Tribunal erred in holding that the inquiry
needed to be and was not connected with the on
call arrangement."

3. These grounds are somewhat inappropriately stated but at the hearing two points only were argued on behalf of the appellant. The first was that a serviceman shaving in preparation for going to his employment was engaging in conduct arising out of or in the course of his employment. The second point was that the appellant was "on call" at the time that he fell and injured himself and that because of the effect of Potts v. The Commonwealth (1971) 18 FLR 128 and Rowe v. Flinders Medical Centre (1978) 45 SAIR 285. any occurrence which affected him must be taken to have arisen out of or in the course of his employment.

4. The first point whether put on the basis of the commencement of a journey when the appellant was shaving or upon the basis that a serviceman shaving in the morning before going on duty is doing something arising out of or in the course of his employment causes me little difficulty. Whether or not a journey has commenced is a matter of fact. The Tribunal found as follows "It is also clear to us that the injury cannot be said to have been incurred on a journey to his place of employment where he was due to start work at 7.50 a.m. since no journey had commenced (during) which the injury occurred". This is a finding of fact. There was evidence upon which it could have been based and it is therefore unappealable here.

5. As to whether the act of shaving for a serviceman before going on duty is an act arising out of or in the course of his employment the argument is put that if a serviceman goes on duty unshaven he may be punished to the extent of being imprisoned for seven days. This possible consequence of appearing on duty unshaven seems to me to be nothing to the point. To shave in the morning before going to work or even when there is no work to go to is a normal incident of life for most men who do not wear beards. I would suppose that a male bank teller who went to work unshaven would incur the displeasure of his employers and if he persisted in doing so would eventually be dismissed from his employment. Nevertheless a bank teller who fell and injured himself when shaving in the morning could hardly be heard to claim that the act of shaving was an act arising out of or in the course of his employment. The Tribunal was in my view quite correct to find that the appellant "was injured when he was shaving in his normal pattern of life before going on duty at the normally prescribed hour".

6. The first ground argued fails.

7. The second ground causes a little more difficulty which possibly would not have arisen had the matters been somewhat more skilfully conducted by counsel before the Tribunal.

8. The appellant gave evidence that amongst the storemen in his unit there was an arrangement whereby week and week about one storeman was on call and apart from travelling to and from work was obliged to stay at home within reach of a telephone in case there might be some need for a storeman out of ordinary working hours. He also said that each storeman was entitled to an extra three days leave over and above his ordinary entitlement because of this on call arrangment. He said that at the time he was injured whilst shaving he was the storeman on call. It was said before the Tribunal that one Sergeant Tierney could confirm this arrangement. Counsel who appeared for the appellant before the Tribunal got in touch with Tierney in Queensland by telephone and made an announcement to the Tribunal as follows -

"I do not propose at this stage to call him as part
of the applicant's case. The reason being that
Mr Tierney certainly recalls the roster system and
he recalls that he introduced a relaxation of that
system at some stage while he was there. The
relaxation was - paraphrasing what he was going to
say - the relaxation was that the person who was
on call was not strictly not entitled to leave
their home."

9. The Tribunal dealt with this evidence in the following two passages in its finding -

"His own counsel had to correct the applicant's
evidence that a person on call could not leave his
quarters after a telephone conversation...It seems
to us that counsel's statement that 'the person
who was on call was not strictly not entitled to
leave his home' would be enough, on its own, to
distinguish the facts from the true 'on call' line
of case Potts v. Commonwealth (1971) 18 FLR
128; Rowe v. Flinders Medical Centre (1978) 45
SAIR 285)."

10. In my view it was a misinterpretation of what counsel had said to say that counsel had to correct the appellant's evidence or that he had stated that "the person who was on call was not strictly not entitled to leave his home". The fact was that counsel said to the Tribunal that Tierney would give evidence to this effect and that he did not propose to call him, a thing very different from admitting the truth of what Tierney would say. In many circumstances this misinterpretation would be a reviewable error on the part of the Tribunal. In my view however it is not such an error here. The Tribunal found as a fact that the "injury to the appellant did not occur while he was attending to a telephone call requiring equipment or whilst waiting for such a call on standby during his off duty hours." This is a clear finding of fact that whatever the true situation with respect to the conditions of the standby arrangement the appellant was not engaged on such standby duty at the time he was injured. There was evidence from the affidavit of Charmaine Vandenburg upon which this finding could have been based and it should be noted that in his statement in the Ground Incident Report the appellant made no reference to being on call. The Tribunal was entitled to disbelieve the appellant's explanation for this omission. In my opinion no error of law is thus demonstrated. This ground also fails.

11. In the result the appeal is dismissed with costs.