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O'Brien v Commonwealth [1967] HCA 49; (1967) 117 CLR 66 (21 December 1967)

HIGH COURT OF AUSTRALIA

O'BRIEN v. THE COMMONWEALTH [1967] HCA 49; (1967) 117 CLR 66

Workers' Compensation

High Court of Australia
McTiernan(1), Kitto(2) and Taylor(3) JJ.

CATCHWORDS

Workers' Compensation - Commonwealth Employees - Accident arising out of or in the course of employment - Worker required to live in camp - Exposure to additional risk - Injury by scalding while obtaining hot water for washing - Commonwealth Employees' Compensation Act 1930-1964 (Cth), s. 9 (1).*

HEARING

Perth, 1967, September 29, October 2;
Sydney, 1967, December 21. 21:12:1967
APPEAL by special leave from the Local Court of Western Australia.

DECISION

December 21.
The following written judgments were delivered:-
McTIERNAN J. This is an appeal by special leave under s. 39 (2) (c) of the magistrate of a local court of Perth. The decision involves less than $100 - consequently an appeal against the decision could not be brought in the Supreme Court of Western Australia without its leave, by reason of s. 107 of the Local Courts Act of the State. Special leave to appeal was sought on the footing that par. (c) of s. 39 (2) of the Judiciary Act applied to the decision in question. The application for such leave was not opposed by the respondent. The appeal was opposed. It was said by counsel for the respondent that the application for special leave to appeal was not opposed because it was a matter of importance to the respondent whether an employee who sustains personal injury by accident outside hours of labour in a camp provided by the Commonwealth for employees who are required to camp out for the performance of their duties has a right to compensation under the Commonwealth Employees' Compensation Act 1930-1964. In the present case, the employee sustained injury to his leg by scalding when hot water he was taking with a bucket from a copper in a camp provided by the postal department as lodgings for a working party of linemen, of which the employee was a member, split on his leg. He needed the hot water to prepare a warm bath to wash himself after the day's work. The bath-tub was in the camp, the copper and bucket were some of the utensils provided by the employer, the Postmaster-General, for use by the men in the camp, all of whom were his employees. During the day on which the accident happened they had been digging trenches in which to put conduit for telephone wires: this involved blasting operations. The work was not dirty but dusty and they returned to the camp covered with dust. In the Act the fundamental condition of the liability of the Commonwealth to pay compensation is that personal injury by accident arises to an employee out of or in the course of his employment by the Commonwealth (s. 9 (1.)). In the present case the employee was not incapacitated for work. He claimed by way of compensation the cost of medical treatment of the injury, which was but a small amount. The Commonwealth is liable under s. 11 to pay the cost of medical treatment of an injury, whether or not it incapacitates the employee for work, but the fundamental condition of liability is the same as under s. 9 (1.). The cri de coeur by the respondent for a decision that would be a guide for it to determine its liability in cases of accidents to employees required to camp out for the performance of their duties is not, I think, capable of being fully satisfied. It is apt to cite an observation of Lord Buckmaster in London and North Eastern Railway Co. v. Brentnall (1933) AC 489, at p 492 : "It is satisfactory to know that the injury was not serious, and the claim is merely for damages from 16th April to 6th May. The amount involved is very small, but this House will no doubt accept the statement of the railway company that it is not the amount that is in dispute that has caused them to appeal this case, but their anxiety to secure some definite decision as to what is the true extent of their liability in such cases as the present. I am afraid it will be impossible to give them any ruling that will extend beyond the special facts and circumstances of this case. It is not, in my opinion, a prudent course to attempt in a case of this kind to lay down general principles which may, in the end, be said to apply to matters that were not within the contemplation of the judge who is attempting to enunciate the doctrine." Similar observations have been made in other decisions on the criterion of liability in workmen's compensation legislation: see the observations of Dixon C.J. in The Commonwealth v. Oliver (1962) [1962] HCA 38; 107 CLR 353, at p 357 . (at p69)

2. The appellant duly made a claim for compensation under s. 11 in respect of the injury to his leg. In the first instance, in accordance with the procedure in such cases, the claim was considered by the Commissioner for Employees' Compensation whose authority arises under s. 6 and he made a determination that the claimant was not in the course of his employment when the accident happened, and that it did not arise out of his employment. The employee appealed against that determination in the exercise of his right of appeal under s. 20. The appeal was brought to a Local Court at Perth constituted by a magistrate of the State of Western Australia. On referring to the definition in s. 4 (1) of the expression "county court" in s. 20, it will be seen that the magistrate was competent to hear the appeal. It was an appeal by way of rehearing and evidence was adduced on both sides. (at p70)

3. It appears from the claimant's evidence that in January 1966 the Department of the Postmaster-General sent him to work in the capacity of a lineman with others who were laying cable in the Denmark area of Western Australia and were living in "M" line camp which was some miles from Mount Barker on the Rocky Gully Road. In March the work had progressed into the latter town and the men, including the claimant, were still lodging in the camp. Describing the camp in his evidence, the claimant said that it consisted of a caravan kitchen for the cook, four tents, "a two-roomed shearers' house" - no shearers were then in occupation - and "a mess which we erected ourselves" for eating; there was no "running water", the men carried water to the camp in a wheeled container: they obtained hot water for bathing and washing from two coppers supplied to the camp by the Department: these were lit by the cook at 3 p.m. when there was a cook among the employees of the Department living in the camp; if not, a man would come in from the job to light the coppers. The fuel was wood brought in by the men from the bush near the camp; some of the men returning to the camp after work would cut wood needed as fuel in the camp with a chain saw and put it in the back of the truck - the saw and the truck were part of equipment provided by the Department. Relating the circumstances of the accident, the claimant said in evidence that on 23rd March 1966 the men were blasting a trench in rock to lay conduit for a cable and finished work for the day at 5.30 p.m. and got back to the camp at about 6 p.m.: they were dusty as a result of blasting operations throwing up dirt: after tea he decided to have a bath. The bath-tub was made of tin and it was on the verandah of the hut, the verandah being the bath-room. The bath was usually filled by hand with the use of galvanized buckets with water taken from the copper. The claimant, continuing his evidence, said:

"It was 8 or a little before and I was ready to go to bed. I went to the copper with two galvanized buckets. I dipped it in. I lifted it up and as I came away with it I didn't lift it quite high enough and the bottom lip of the bucket hit the top of the copper causing it to spill over and hit me on the left leg with the boiled water." The claimant further said that at the time of the accident he was wearing his working clothes, "a pair of jeans and just a shirt and a pair of working boots". He reported the accident to the "party leader" at the camp and then treated the burns on his leg with ointment from the first aid kit which the party leader kept in his quarters at the camp. The claimant went to work next day. The place where the "M" line party, of which the claimant was a member, resumed work was on the outskirts of Mount Barker near the local hospital. The claimant reported to the party leader that the burns were troubling him and the party leader told him to see a doctor at the hospital. The burns were treated by a doctor at the hospital and the claimant returned to his job. An account was sent by the hospital for the medical treatment. The total was $3.50. The Commonwealth did not dispute the claimant's evidence. The magistrate found that the accident happened as the claimant described. The Commonwealth, however, set up a defence that the evidence of all the circumstances did not prove that the injury arose to the claimant out of or in the course of his employment by the Commonwealth. (at p71)

4. The only evidence of the terms and conditions of the claimant's employment was a Determination made by the Public Service Arbitrator of the "rates of pay and other terms and conditions of employment of employees in the service of the Postmaster-General's Department, including linemen". It is provided by cl. 29 of the Determination that it is to be read with the Public Service Act 1922-1964 and Regulations made thereunder from time to time. We were not referred by counsel on either side to anything in the Act or the Regulations. The Determination was made on 11th December 1964 and has suffered a number of variations by the Arbitrator. (at p71)

5. The respondent's case at the hearing before the magistrate was stated by counsel for the Commonwealth in these words: "The appellant suffered his injury, but not in the course of his employment or arising out of his employment. It will be contended that having a bath is an activity which is not an incident of the employment, nor associated with the employment. It will also be contended that the fact of residing in the camp, as far as the appellant was concerned, is similar to that of residing - of a workman residing in a home supplied by his employer because evidence will be brought to establish that he was not bound to reside in the camp and under the terms of the award he has an absolute right, under the circumstances which applied in this case, to exercise his right of boarding in the town; and therefore he had a choice which he could exercise at will." It is necessary to refer specially to two clauses of the Determination. Clause 16, which is headed "Camping within two miles radius of town", reads thus:

"An employee shall not be required to camp out -
(a) when the work upon which he is engaged is within a two
mile radius of the Post Office of any town or township
where accommodation is available;
(b) where the Department permits him to lodge elsewhere.
Provided that paragraph (a) of this clause shall not apply
unless the engineer-in-charge certifies that the party of which
the employee is a member will be engaged within that radius
for not less than six days."

The other clause, 17, which is headed "Camping allowance", reads, as far as it is necessary to quote its provisions, thus: "(1) An employee who is required to camp out for the

performance of his duties shall be supplied with camp
equipment
by the Department, and while camping out shall be paid
an allowance specified hereunder: -
(a) Where a cook is provided by the Department -
Married Employee: $1.90 per day
Unmarried Employee: 85c per day
(b) Where a cook is not provided by the Department -
Married Employee: $2.10 per day
Unmarried Employee: $1.05 per day".

An observation regarding a lineman's employment was made in Goward v. The Commonwealth [1957] HCA 60; (1957) 97 CLR 355, at p 364 . It reads: "Logically there is of course a preliminary question, namely, whether the deceased's living in the camp fell within the general conception of the 'employment'. But upon this question there could hardly be any doubt. Theoretically he could live where he liked so long as he was at hand to attend to his actual duties. But this was an entirely theoretical proposition. The postal department recognized the necessity of a camp, established and regulated camps, organized camping parties and paid a camping allowance. To live in the camp may therefore be regarded as an incident of the employment." The accident out of which that case arose and the decision antedated the Determination of the Public Service Arbitrator put in evidence in the present case. The evidence of the claimant shows that, unless cl. 16 made a difference, living in the camp was an incident of his employment as a lineman. The Commonwealth relied on the proximity to Mount Barker at the time of the accident of the work on which the party of employees to which the claimant belonged were engaged, to bring into play cl. 16. Some evidence about accommodation in Mount Barker was given - the evidence is hardly convincing. The fact was that the party went on living in the camp with the sanction of the postal department's man in charge of them and the work, and they received camping allowance in accordance with cl. 17. As regards cl. 16, the magistrate found that as no certificate of the engineer-in-charge had been given, the party of which the claimant was a member were not exempt from the condition of the employment that they camp out as required by the postal department. The magistrate commented: "It is a reasonable requirement when it is considered that the Department had provided full equipment and catering for every member of the gang." This could explain why the men were required to camp out. The magistrate's judgment, however, was adverse to the claimant. The reasons were as follows: "As the worker was required to live at the camp, subject to camp discipline and call-back for emergency duty, the question arises whether an accident arising out of the voluntary use of the rather primitive water heating facilities provided by the employer presents a case for compensation under the statute. The accident itself was of the ordinary domestic type likely to happen anywhere, particularly when one is living outside an urban or suburban area. The only association with the employment is that the accident happened under living conditions established by the employer. The worker was engaged at the time in an activity of benefit only to himself and in his own time. He was not doing anything of value for the gang, as a whole, or any other members of it, nor was he assisting the employer to discharge any of its obligations (Pearson's Case (1929) [1929] HCA 19; 42 CLR 320 ). I regard the conditions of being subject to discipline while in camp and liable to call-back for emergency duties as being equivocal. Discipline simply means good behaviour and liability to call-back would apply wherever the worker was living. He had not been called back in fact and was otherwise a perfectly free agent at the time." The magistrate did not definitively find that the claimant was dwelling in the camp where he was injured in the course of his employment. The performance of his work as a lineman was not all that the "employment" included. In order to decide whether the injury arose in the course of his employment it is necessary to include the incidents of his employment as a lineman. When living in the camp the men had liberty of action outside hours of labour, subject to the right of the postal department under the Determination to call them up for duty in an emergency. The important consideration is that on the evening the accident happened, as on all the other evenings, the claimant was living there. The Department accommodated him as a condition of his employment and he was responding to the demands of his employment by living there. It was at least an incident of the employment of a lineman to camp out for the performance of his duties in camps established, equipped and regulated by the postal department as employer. Living in such a camp when the Department put him under the necessity of his doing so was a side or phase of the "employment": Goward v. The Commonwealth (1957) 97 CLR, at p 364 ; Kavanagh v. The Commonwealth [1960] HCA 25; [1960] HCA 25; (1960) 103 CLR 547, at pp 556, 557 ; The Commonwealth v. Oliver (1962) 107 CLR, at pp 356-358 . The next question is whether it follows necessarily from the fact that the claimant's living in the camp fell within the conception of the "employment". He met with the accident in the course of the employment. Living in the camp as an incident of the employment is not equivalent merely to being present on the premises. But it did include going to the copper to get hot water for a bath and using the camp bucket to carry it into one of the camp's bath-tubs. Taking an instance given in argument: If the claimant had cut himself when shaving with his own razor, would the Commonwealth be liable to pay compensation in respect of the injury? This, I think, would not be comparable with the instant case. Another thing that differentiates what the claimant was doing when injured from a mere personal service to himself would be that he was following a routine expected of an inmate of the camp before going to bed, he was not intending to have a bath preparatory to dressing in order, for example, to go into Mount Barker on that evening. (Cases analogous in some degree to the present case are: Carruthers v. Metropolitan Meat Industry Commissioner (1938) 38 SR (NSW) 116 ; Cheney v. The Commonwealth (1964) 6 FLR 197 ; Commissioner for Railways v. Ireland (1963) WCR (NSW) 198 ; Commissioner for Railways v. Davies (1963) WCR (NSW) 193 ; Jones v. Attorney-General (Tas.) (1957) Tas SR 36 ; see also, MacDonald's Law Relating to Workers' Compensation, 3rd ed., at p. 249.) (at p74)

6. I am of the opinion that the claimant suffered the injury by accident arising in the course of his employment and is therefore entitled to compensation in respect of the medical treatment of the injury. (at p74)

7. For these reasons I would allow the appeal and remit the claim to the Local Court at Perth. (at p74)

KITTO J. In my opinion the appeal should be allowed. I agree in the reasons to be stated by my brother Taylor. (at p74)

TAYLOR J. On 22nd March 1966 the applicant was a lineman employed by the Postmaster-General's Department of the Commonwealth and on that day he was a member of the "M" line party which was engaged in laying cable between serial joints for a sub-route in the Denmark area of Western Australia. There was a number of men in the party and on the day in question they had been living for some time in a camp provided by the respondent in the vicinity of Mount Barker. The camp consisted of a caravan kitchen in which cooking facilities were availabe, four tents, a two-roomed shearers' hut and a mess which the party had erected themselves. Additionally the respondent had provided camping equipment, such hygienic and sanitary conveniences as was possible and two coppers for washing and heating water. On the date mentioned the applicant had been engaged with other members of the party in blasting a trench in rock for the purpose of cable laying and about 6 p.m. he returned to the camp. He was, as he says, "pretty dusty at that time from the blasting . . . it threw up the dirt and we were pretty well covered", and after having had his tea he proceeded to prepare to take a bath. The bath was situated on what appears to have been an enclosed portion of the verandah of the hut. It was necessary for the applicant to obtain water from one of the coppers and carry it to the bath. This he proceeded to do. He went to a copper with two buckets and having filled one by dipping it into the copper was in the act of lifting it out when he struck the top of the copper with the bottom of the bucket causing some of the contents to spill on to his left leg. The resultant scalding did not cause him to lose any time from work but it was necessary for him to have some medical attention, the cost of which was three dollars fifty cents. This was the subject of a claim pursuant to the Commonwealth Employees' Compensation Act 1930-1962 but his claim was disallowed by the delegate of the Commissioner on the ground that his injury did not result from an accident arising out of or in the course of his employment. Subsequently an appeal to a Local Court was also dismissed on the same ground. (at p75)

2. Because of restrictions on appeals from local courts to the Supreme Court of Western Australia the applicant did not have a right of appeal to this Court from the order of the Local Court and he now seeks an order for special leave to appeal. In support of the application it is pointed out that the magistrate found - and found rightly - that the applicant was lawfully required pursuant to the terms of his contract of employment to live in the camp provided and it is contended that an important question of principle is involved. Having regard, however, to the infinite variety of circumstances in which accidents may occur in such an establishment - some of which would be clearly compensable and others clearly not - and to the insignificance of the claim the matter did not commend itself to me as one in which we should grant special leave to appeal. But since a majority of the Court was in favour of granting special leave it is necessary for me to deal with the case on its merits. (at p76)

3. The reason why the magistrate dismissed the appeal to him is expressed in the following passage taken from his reasons: "As the worker was required to live at the camp, subject to camp discipline and call-back for emergency duty, the question arises whether an accident arising out of the voluntary use of the rather primitive water heating facilities provided by the employer presents a case for compensation under the statute. The accident itself was of the ordinary domestic type likely to happen anywhere, particularly when one is living outside an urban or suburban area. The only association with the employment is that the accident happened under living conditions established by the employer. The worker was engaged at the time in an activity of benefit only to himself and in his own time. He was not doing anything of value for the gang, as a whole, or any other members of it, nor was he assisting the employer to discharge any of its obligations (Pearson's Case [1929] HCA 19; (1929) 42 CLR 320 ). I regard the conditions of being subject to discipline while in camp and liable to call-back for emergency duties as being equivocal. Discipline simply means good behaviour and liability to call-back would apply wherever the worker was living. He had not been called back in fact and was otherwise a perfectly free agent at the time. . . . In the case now before me the worker has shown that he was voluntarily about to take a hot bath after his day's work. As in Goward's Case [1957] HCA 60; [1957] HCA 60; (1957) 97 CLR 355 to live in a camp was an incident of his employment, but I consider that there is no causal connexion between an accident whilst taking a bath in the evening after a day's work." (at p76)

4. I think it is a mistake to attempt to decide this case simply by saying that the applicant was voluntarily making use of the "rather primitive water heating facilities provided by the employer" and that "the worker was engaged at the time in an activity of benefit only to himself and in his own time", or that "he was not doing anything of value for the gang, as a whole, or any other members of it". The fact is that he was living in a small community pursuant to his obligations under his contract of employment and it is reasonable to suppose that, as one of the community, he was expected by the respondent to conform to such reasonable standards of cleanliness and hygiene as the circumstances permitted. The case is, of course, quite unlike Henderson v. Commissioner of Railways (W.A.) [1937] HCA 67; [1937] HCA 67; (1937) 58 CLR 281 and other cases such as Commissioner for Railways v. Lollback (1955) 55 SR (NSW) 251 and Ford v. Forestry Commission of New South Wales (1961) 78 WN (NSW) 1076 , to which we were referred. These cases and examples given in the course of argument merely illustrate the proposition that accidents in such circumstances may occur in an infinite variety of ways and that it is impossible to draw a precise line dividing cases into those which are compensable and those which are not. But in the present case there can be no doubt that the applicant was required pursuant to his contract of employment to live in the camp and that in the course of doing this he was not only entitled, but expected, to conform to standards which were compatible with the fact that, temporarily, he was a member of a small community. This being so it seems to me that if, in availing himself of the facilities provided he was exposed to some risk - resulting in an injury by accident - which was additional to or different from those which in normal circumstances he might be expected to encounter, the conclusion is inescapable that, at the least, his injury was caused by accident arising out of his employment. In such a case there is "a sufficiently proximate causal connexion between the employment and the accident to satisfy the condition expressed by the words 'arising out of' " (Henderson v. Commissioner of Railways (W.A.) (1937) 58 CLR, at p293 ). This does not mean that the mere physical presence of a worker in such a camp as that now under consideration will entitle him to compensation for all injuries by accident occurring whilst he is in the camp; the case, as I see it, is one where the accident resulted from his exposure to an additional risk whilst, as he was lawfully required, he was living in the camp. (at p77)

5. That being so the appeal should, in my opinion, be allowed and the case remitted to the local court to award an appropriate sum for medical treatment pursuant to s. 11 of the Act. (at p77)

ORDER

Appeal allowed with costs. Order of Local Court set aside. Case remitted to that Court for further hearing.

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