Webb v Commissioner for Railways (NSW) [1938] HCA 24; (1938) 59 CLR 593 (11 April 1938)

HIGH COURT OF AUSTRALIA

Webb Applicant, Appellant; and The Commissioner for Railways (New South Wales) Respondent, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

11 April 1938

Rich, Starke and Dixon JJ.

McClemens, for the appellant.

Bradley K.C. and Chambers, for the respondent, were not called upon.

The following judgments were delivered:—

Rich J.

It is conceded by the appellant's counsel that the injury which his client sustained could not have been found as a fact to have arisen out of and in the course of his employment. His appeal depends wholly on the provisions of sub-sec. 2 of sec. 7 of the Workers' Compensation Act 1926. The interpretation of this provision, which is taken from the English Act of 1923, has proved a source of much difficulty in England. It is by no means easy to say what in all respects is the precise result of the decisions as they stand at present. But, both on the terms of the Act and upon the authorities, one thing at least is clear. The act which the worker was doing at the time when the injury was received must have been done by him "for the purposes of and in connection with his employer's trade or business." As has been pointed out, this is wider than the worker's employment. The tribunal of fact set up by the statute is the commission, and no appeal lies from its findings of fact to the court. The commission has found in distinct terms that the act done by the appellant, viz., his attempt to climb on the moving engine, was not done "for the purposes of and in connection with his employer's trade or business." It is contended that the commission misunderstood or misapplied the law by which it should be guided in applying the law. There would be little to wonder at, and there would be no blame, if anybody who studied the numerous expositions of the sub-section failed to obtain a correct apprehension of their final significance. But there is one question of unadulterated fact outstanding, and that is the reason which prompted the appellant to climb on the engine. I think that the commission has made it sufficiently clear that in its opinion his reason was quite independent of anything arising in the pursuit of "his employer's trade or business." He simply wanted to talk to one of the crew. It happened that the engine was slowly moving in the same direction as he was going. But the finding, in effect, is that he turned aside from the purposes of his employer's business for a purpose of his own. If he was animated by this motive for his act and in doing it he had no intention of doing something on behalf of his master or in the furtherance of his business, it cannot be said that the act was done by the worker "for the purposes of and in connection with his employer's trade or business." The inference was one open to the commission on the circumstances of the case, and we cannot interfere with its finding of fact.

Mr. McClemens, who argued the case very well, has argued that the mere fact that the appellant was carried in the same direction as his work required him to go was enough to make his act in attempting to board the engine one done for the purposes of his employer's business. But I think the actual reason of the man for the act must be the deciding factor, at all events where the real and substantial motive is unconnected with the master's business.

The appeal should be dismissed with costs.

Starke J.

I agree.

The question in the case is really one of fact. Under the Workers' Compensation Act 1926 and its amendments a worker who receives a personal injury arising out of and in the course of his employment is entitled to compensation. Further, it is provided that an injury to a worker shall be deemed to arise out of and in the course of his employment notwithstanding that the worker was at the time of the injury received acting in contravention of a statutory or other regulation "if such act was done by the worker for the purposes of and in connection with his employer's trade or business."

Now in this particular case the Workers' Compensation Commission has found that the worker did not receive a personal injury arising out of and in the course of his employment. He got on an engine without any right to do so and contrary to regulation. But it is said that his act must be deemed to arise out of and in the course of his employment because it was done by the worker for the purposes of and in connection with his employer's trade or business. Again the commission has found the fact against the worker. He got on the engine for his own purposes and not for any purpose of and in connection with his employer's business. There is ample evidence to sustain the finding of the commission though it is quite possible if the commission had found the other way that the finding could not have been disturbed. The question as already indicated is wholly one of fact and exclusively within the jurisdiction of the Workers' Compensation Commission. The jurisdiction and authority of the Supreme Court and of this court are confined by the Act to questions of law. The worker has failed to establish the condition necessary for an award in his favour, and his appeal therefore fails.

Dixon J.

I agree.

This case illustrates the difficulties that arise in distinguishing between an appeal upon facts and an appeal upon law. Under sec. 37 of the Workers' Compensation Act a party may require the commission to state a case for the decision of the Supreme Court and the commission must then do so. In this particular case, instead of stating the precise findings, the commission has incorporated in a case which contains evidence its reasons for judgment. Its reasons contain a consideration of a decision which the House of Lords had pronounced in 1926 upon this very difficult section, sec. 7, and it contains various statements in relation to the facts. It is not very easy to disentangle the conclusions of the commission from the evidentiary matters with which the reasons deal and from the commission's answers on matters of law. Sub-sec. 2 of sec. 7, however, makes one condition essential to its application, and that is that the act done by the workman at the time when he received his injury should be one done for the purpose of and in connection with his employer's trade or business. In the present case the regulation which was infringed was one which forbade him to board an engine. He did board an engine, and, no doubt, because he infringed the regulation, sub-sec. 2 would apply so far as concerned the fulfilment of that particular condition of its application. The engine was going in the same direction as the work of the employee would have taken him. The commission has made no very distinct finding as to the reason why he boarded the engine, but it has stated that it was very likely that he did so in order to talk to a member of the engine crew. It is conceded that the burden of proof was upon the applicant, and to suppose that he may have had such a purpose is in these circumstances almost as good as a direct finding, because, as a reasonable supposition, or hypothesis, it would exclude or at least militate against a finding that his reason was to get to his journey's end in a more expeditious manner. The general facts of the case suggest that there is very little reason for thinking that he climbed on the engine for the purpose of being carried. In all the circumstances I think we are entitled to take it that the commission negatived definitely that the object was to pursue his master's business and believed that the object of it was purely personal and had no relation whatever to his master's business. If that be so, I am of opinion that sec. 7 (2) could not apply.

I am unable to agree with the statement that the mere objective fact that the engine is going in the same direction as the man was required to go is enough to make his journey one for the purposes of and in connection with his master's trade or business. I think the provision necessarily requires a consideration of the actual purpose which guided the man's actions and does not allow of the case being considered from an entirely objective point of view. In those circumstances the suggestion that the commission misapprehended the effect of the decision of the House of Lords seems immaterial, because the commission has made one distinct finding of fact which supports its conclusion and is fatal to a contrary conclusion.

For these reasons I agree that the appeal should be dismissed.

Appeal dismissed with costs. Question 4 answered: Yes. It is unnecessary to answer any of the other questions.

Solicitors for the appellant, C. Jollie Smith & Co.

Solicitor for the respondent, Fred. W. Bretnall, Solicitor for Transport.