Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 (14 December 1951)

HIGH COURT OF AUSTRALIA

HUMPHREY EARL LTD. v. SPEECHLEY [1951] HCA 75; (1951) 84 CLR 126

Workers' Compensation

High Court of Australia
Dixon(1), McTiernan(2), Williams(3), Webb(4) and Fullagar(5) JJ.

CATCHWORDS

Workers' Compensation - Injury arising "in the course of the employment" - Worker employed at various places away from employer's premises - Worker's desire for special lunch - Obtainable only at another village - Journey to that village by motor cycle - Return journey - Accident on public road - Injury sustained by worker - Workers' Compensation Act, 1926-1948 (N.S.W.) (No. 15 of 1926 - No. 40 of 1948), s. 6 (1).

HEARING

Sydney, 1951, November 23, 26; December 14. 14:12:1951

DECISION

December 14.
The following written judgments were delivered: -
DIXON J. This is an appeal by special leave from an order made by the Compensation Commission. The question submitted by the case stated to the Supreme Court was whether upon the facts proved or admitted the commission erred in law in holding that the injury sustained by the applicant, who is the respondent in this appeal, was sustained in the course of his employment. The Supreme Court decided that the Workers' Compensation Commission did not err in so holding. (at p131)

2. The respondent sustained physical injuries in a road accident which occurred at four o'clock or thereabouts on 17th May 1948. This is the injury held to have been suffered in the course of his employment. He was riding a motor cycle from Brookvale to Collaroy. There was a side box on the motor cycle and in the side box was seated a man named Knowles who kept a shop at Collaroy. The respondent was employed by the appellants, who are a company carrying on business at Lidcombe as manufacturers of bacon cutters and scales. The business includes the servicing of the implements supplied to customers. The respondent had recently gone into the employment of the appellants. His duties included the visiting of shops and other places where there were implements provided by the appellants which required repair or attention. At Knowles' shop at Collaroy, a mixed business was carried on. The shop contained a bacon cutter and bread slicer supplied by the appellants which required attention. Knowles had communicated this fact to the appellants and as a result, among the five or six work slips which were handed out to the respondent on the morning of the 17th was one requiring him to attend Knowles' shop at Collaroy. He visited the other jobs first so that that at Collaroy would be the last job of the day. He reached Knowles' shop at Collaroy between half past twelve and a quarter to one. Apparently he took the machine to pieces and sharpened the blades. He worked at it until close upon two o'clock. Knowles had a wife and a daughter, but neither was at the shop at the time and Knowles did not wish to prepare lunch for himself, still less for the respondent. Apparently they had enlivened the work with conversation. At length Knowles raised the question of going out for lunch together. A discussion arose as to the desirability of having a hot fish lunch. According to Knowles' evidence it was his idea that they should go out to lunch, his wife was away, he (Knowles) wanted to have a feed instead of getting the lunch and the respondent was "talking fish". The work at the bacon cutter seems to have been nearly complete. There is a little confusion as to what remained to be done or, indeed, whether anything remained to be done. The learned judge who heard the matter in the Workers' Compensation Commission said there was little work left to be done, whether it was left undone by design or whether it could not be done before they set out in search of the fish lunch. Apparently there was some difficulty in obtaining at Collaroy what they were in search of, although, of course, there were shops at which they might have obtained lunch. According to the specific findings in the case stated the lunch could have been had by the respondent at Knowles' shop or at other shops in Collaroy or Dee Why, but a hot fish meal was not available owing to gas restrictions and to the lateness of the luncheon. The respondent was particularly desirous of having a fish lunch and for that purpose went in company with Knowles to Collaroy and to Dee Why, where also a fish lunch was unavailable. At Dee Why they called at a hotel where they drank beer, the time occupied being approximately ten minutes. They then proceeded upon the motor cycle to Brookvale, which is south of Dee Why, and it was there they obtained the fish for which they were searching. After they had consumed the fish by the roadside the respondent, in company with Knowles, drove the motor cycle back from Brookvale with the intention of returning to Knowles' shop at Collaroy. The respondent's purpose was either to perform further work in connection with the bacon cutter or to collect tools used in its repair. It was while they were returning from Brookvale to Collaroy on the main road approaching Dee Why that the accident occurred in which the respondent was injured. It was specifically found by the learned judge that the respondent's sole purpose of proceeding from Collaroy to Brookvale was to partake of a particular type of lunch which he preferred, namely, fish. But the learned judge found that the injury arose in the course of the respondent's employment with the appellant and the question for decision is whether that conclusion was reasonably open to him upon the facts and the evidence. (at p133)

3. In my opinion the conclusion was not open and the decision in favour of the respondent cannot be supported. The respondent's work apparently required him to spend the day or portions of it visiting customers of the appellants and his absence from the appellants' place of business at Lidcombe obviously was likely to include the luncheon interval. His use of the motor cycle so long as it was confined to the purposes of his duties was undeniably within the course of the employment. The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties: see Brice v. Edward Lloyd Ltd. (1909) 2 KB 804 ; Knight v. Howard Wall Ltd. (1938) 4 All ER 667 ; Pearson v. Fremantle Harbour Trust (1929) 42 CLR 320 ; Whittingham v. Commissioner of Railways (W.A.) [1931] HCA 49; (1931) 46 CLR 22 ; Henderson v. Commissioner of Railways (W.A.) [1937] HCA 67; (1937) 58 CLR 281 ; Davidson v. Mould [1944] HCA 10; (1944) 69 CLR 96 . (at p133)

4. No one denies that when the duties of the present respondent took him to the shop of one of the appellants' customers and kept him there over a meal time any course which he adopted for the purpose of obtaining lunch, provided that it was reasonably related to the exigency occasioned by his duties, might be considered to be in the course of his employment. But to make what he did in connection with obtaining lunch part of the course of his employment it is necessary that it should be reasonably connected with the particular situation which the performance of his duty to his employer had created. In other words, when he ceased work for lunch and left the scene of his labours, what he did could not fall within the course of his employment unless it was a reasonable consequence of the circumstances in which he was placed through the performance of his duties. The eating of lunch is not in itself a thing which is done for the purpose of his duties. It is the satisfaction of a recurrent human want (cf. per Lord Sumner, in Sir W. G. Armstrong, Whitworth & Co. Ltd. v. Redford (1920) AC 757, at p 774 . But the conditions of the employment may be such as to make the obtaining and consumption of a meal something reasonably incidental to the performance of the actual duties. The point in such a case as this is not whether it is reasonable to eat lunch or reasonable to want fish for lunch. The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties. This cannot be stretched to make everything he chooses to do during the interval he takes for lunch incidental to his employment. If he so far deviates from what is reasonably incident to the execution of his duties as to proceed on a purpose of his own not fairly resulting from the nature or incidents of the employment, that purpose cannot be considered in the course of the employment. There is a great difference between, on the one hand, the worker's taking advantage of an allowable interval for lunch in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants. Such questions must involve matters of degree, but it does not follow that their decision is always a question of fact open in point of law to a finding either way. Even in a matter of degree the facts may show so great a departure from what is an allowable incident of the employment that it is not open to a court to make any but one finding. The facts of the present case make it clear that Knowles and the respondent decided to make the respondent's presence at Collaroy at that time of the day and the absence of Knowles' wife the occasion of a special expedition involving a not inconsiderable journey from the place of employment for the purpose of a particular form of food. They made, in other words, a party of the occasion. The excursion to Brookvale cannot be considered to be reasonably incidental to the employment. No doubt the return journey was for the purpose of taking up a necessary part of the employment again, namely, the collection of the tools or the finishing of the job, whether the tools had been left there or the job left unfinished by design or not. But when the respondent mounted the motor cycle at Brookvale to return to Collaroy he did not thereby resume his employment. He merely began the return journey towards the resumption of his employment (cf. Knowles v. Southern Railway Co. (1937) AC 463, at p 471 ; Hancock v. Operating & Vending Machine Co. Ltd. (1938) 31 BWCC 209 ). (at p135)

5. For these reasons the finding on the facts of this case that the respondent was injured in the course of his employment was not reasonably open to the commission. The appeal should be allowed. The order of the Supreme Court of New South Wales should be set aside and in lieu of that order the question in the case stated should be answered that the commission did err in law in holding that the injury sustained by the applicant (the respondent upon this appeal) was sustained in the course of his employment. The appellants are entitled to the costs of the appeal in this court and of the case stated in the Supreme Court. (at p135)

McTIERNAN J. This is an appeal by special leave from a judgment of the Full Court of New South Wales given upon a case stated for its opinion in pursuance of s. 37 (4) of the Workers' Compensation Act, 1926-1948 (N.S.W.). The question of law referred for the decision of the Full Court arose out of proceedings before the Workers' Compensation Commission of New South Wales in which the respondent claimed compensation from the appellant for incapacity resulting from an injury received by the respondent, who alleged that the injury arose out of or in the course of the employment. The Act imposes liability upon the employer if either of those conditions is fulfilled. The commission, after hearing evidence, made an award in favour of the respondent holding that he received the injury "in the course of his employment" with the respondent. The question referred to the Full Court for its decision, at the appellant's request, was: "Upon the facts proved or admitted did the commission err in law in holding that the injury sustained by the applicant was sustained in the course of his employment?" The Full Court answered the question in the negative. The facts which were proved or admitted at the hearing before the commission are set out in the case stated. The paragraphs and sub-paragraphs of the case in which the facts appear are as follows: -
"6. The following facts were proved or admitted at the hearing: - (1) The applicant was employed by the respondent as a service mechanic and salesman in its business of manufacturing engineers, involving, inter alia, the manufacture, sale and servicing of bacon cutters and scales and it was part of the applicant's duty to sell, instal, repair and service bacon cutters and scales supplied by the respondent to its customers. (2) On the Seventeenth day of May, 1948, the applicant was instructed to proceed to the shop of one, Harold Nathaniel Knowles at Collaroy to effect repairs to a bacon cutter, and in so doing travelled by a motor cycle with side box attached, which was supplied by and was the property of the respondent. (3) The applicant arrived at the shop of Mr. Knowles between approximately noon and 12.30 on the said Seventeenth day of May, 1948, and after dismantling the bacon cutter and performing certain work thereon, left the shop of the said Knowles approximately at 2 p.m. or a little after in company with the said Knowles, the applicant riding the motor cycle and the said Knowles being conveyed in the side box.
7. The following further facts were found by the Commission: - (i) That the applicant stopped work approximately at 2 p.m. or a little after, with a view to taking lunch in company with the said Knowles. (ii) That lunch could have been had by the applicant at the shop of the said Knowles or at other shops in Collaroy or Dee Why which is the next village south of Collaroy, but a hot fish meal was not available owing to gas restrictions prevailing at the time, and the lateness of the luncheon hour. (iii) That the applicant was particularly desirous of having a fish lunch which was not available at Collaroy, and in the company of the said Knowles proceeded to Dee Why where a fish lunch was also unavailable. (iv) Whilst in Dee Why the applicant called at the Dee Why Hotel and partook of some beer. He was there for a period of approximately ten minutes. (v) That the applicant in company with the said Knowles then proceeded on the motor cycle to Brookvale which is a village south of Dee Why, and there fish was obtained and consumed on the roadside. (vi) That after consuming the fish the applicant in company with the said Knowles proceeded on the motor cycle with the intention of returning to Knowles' shop at Collaroy and there either performing further work to the said bacon cutter or collecting tools used in connection with its repair. (vii) The applicant was returning from Brookvale en route to Collaroy and when on the main road approaching Dee Why was injured in a traffic accident approximately approaching 4 o'clock. (viii) That the applicant's sole purpose of proceeding from Collaroy to Brookvale was to partake of a particular type of lunch which he preferred, namely fish." (at p136)

2. The question is whether these facts can support the finding that the respondent was driving the motor cycle in the course of his employment when he met with the accident. If the facts can support the finding this Court cannot interfere, even if it would have reached the opposite finding. The decision of the question depends upon the true construction of the phrase "in the course of the employment" and its application to the facts that are set out above. The phrase has been construed and applied very many times in cases under the Workers' Compensation Act. For present purposes it is sufficient to refer to Henderson v. Commissioner of Railways (W.A.) [1937] HCA 67; (1937) 58 CLR 281 . Dixon J. said in that case "The general principle governing the ascertainment of the 'course of employment' appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. A number of them, taken from leading authorities, will be found in the judgment of this Court in Pearson v. Fremantle Harbour Trust [1929] HCA 19; (1929) 42 CLR 320 . Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties" (1937) 58 CLR, at p 294 . (at p137)

3. In the present case the injury was received after the respondent stopped work on the job he was doing in Knowles' shop, as the respondent contends, for lunch. The case is not one of the usual type where the worker is injured during lunch time at or near the scene of his work. (at p137)

4. Although the fact is not stated to have been proved or admitted, it may be assumed, for the purposes of the case, that under the contract of service the respondent was at liberty to drive away from the job at Knowles' premises when he did, in order to obtain a meal, and take Knowles with him. (at p137)

5. Clearly, the case is not this, that the respondent, finding the food obtainable in Knowles' shop or in the village, where the shop was, not to his taste, he went further afield and used the motor cycle to save time, so that his absence from the job, which it was his duty to complete, would not be prolonged beyond the length of a reasonable lunch interval. If that were the case, it might have been possible to perceive more connection than the facts disclose between the return trip on which the respondent was injured and his employment. Nothing, however, is relied upon to bring the return trip within the course of the respondent's employment except that the purpose of the outward run was to find a meal to suit the respondent's appetite, and probably also Mr. Knowles' appetite. That purpose cannot be a decisive ground upon which to decide the case unless the respondent was at liberty to go wherever the particular food was to be obtained which he like, regardless of the distance of the place from Knowles' shop and the time it would take to return there: unless, in other words, the excursion which the respondent made to obtain the meal was a normal affair under his contract of employment and not beyond what it contemplated when the time for the midday meal arrived. But the prior question is whether he was doing what was right for him to do under his contract of service, in driving so far away from the job he had in hand and absenting himself from it for the length of time it would have taken him to get back to the job if he had not been injured; and all this to gratify his own appetite for a particular kind of a meal. As there is no proof of any positive term of the contract or instruction by which to test the respondent's conduct, the law must have recourse to reason to supply the limits to the liberty which the contract of service implies in these matters. Measuring the distance which the respondent travelled to obtain his lunch by the villages through which he travelled, and taking the length of time that elapsed, between the time at which he stopped work, and when he received the injury, it would be stretching any liberty that could be implied under the contract further than reason would allow to say that the respondent was within his rights in taking that excursion during his employment for the purpose of obtaining a particular kind of a meal. The facts proved and admitted cannot, in my opinion, support the conclusion that the riding of the motor cycle for the purpose of going on that excursion and returning from it was a process of the employment or an incident of the employment: the facts do not support the finding that the respondent received the injury in the course of the employment. The driving was from the beginning until it ended in the accident, in the course of an excursion which was entirely beyond the scope of the respondent's employment. I do not agree that the question whether the respondent received the injury in the course of his employment comes down to a question of degree. The facts which are stated in the case to be proved or admitted are, in my opinion, insufficient in law to establish the connection between the injury and the employment connoted by the words "in the course of the employment". The facts rather support the conclusion that the injury was received during the period of an interruption in the day's work which the respondent made for a purpose personal to him and Knowles and having no true connection with the respondent's employment. (at p139)

6. In my opinion the question should be answered "Yes". I should allow the appeal. (at p139)

WILLIAMS J. I agree substantially with the reasons of Dixon J. and McTiernan J. In my opinion the only finding open in law upon the facts was that at the time of the injury the respondent was engaged on a venture of his own and not on the business of his employer. Accordingly the injury he suffered did not arise during or in the course of his employment. (at p139)

2. I would allow the appeal. (at p139)

WEBB J. I would allow this appeal for the reasons given by Dixon J. and McTiernan J. (at p139)

FULLAGAR J. I have had the advantage of reading the judgment of Dixon J., and I find it sufficient to say that I agree with it. (at p139)

ORDER

Appeal allowed with costs. Order of the Supreme Court set aside. In lieu thereof order that the question in the case stated be answered that the commission did err in holding that the injury sustained by the applicant (the respondent in this Court) was sustained in the course of his employment. Order that the applicant pay the costs in the Supreme Court of the case stated.