Selby Shoes (Australia) Pty Ltd v Erickson [1953] HCA 63; (1953) 89 CLR 26 (1 October 1953)

HIGH COURT OF AUSTRALIA

SELBY SHOES (AUSTRALIA) PTY. LTD. v. ERICKSON [1953] HCA 63; (1953) 89 CLR 26

Workers' Compensation

High Court of Australia
Dixon C.J.(1), Webb(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Workers' Compensation - Periodic journey - Interruption - Substantial - Not reasonably incidental to journey - Injury - Risk - Material increase - Award - Workers' Compensation Act 1926-1951 (N.S.W.) (No. 15 of 1926 - No. 25 of 1951), s. 7 (1) (b).*

HEARING

Sydney, 1953, August 18;
Melbourne, 1953, October 1. 1:10:1953
APPEAL from the Supreme Court of New South Wales.

DECISION

October 1.
THE COURT delivered the following written judgment:-
This is an appeal from an order of the Supreme Court of New South Wales made Compensation Commission. The order of the Supreme Court dismissed the appeal against the award and answered the questions in the case stated in favour of the worker. (at p30)

2. The worker, who is the respondent in this court, suffered injury as he alighted from a moving train on his journey home from work. The accident occurred on 12th December 1951. He was then sixty-three years of age. On that afternoon he left his place of employment at a quarter past four. To travel home it was his custom to take a train from Redfern railway station near which his place of employment was situated. On the afternoon of the accident he did not go directly to the station but proceeded to the London Tavern Hotel, which is not far from the station. From about twenty minutes past four until ten minutes past five he remained in the hotel, where he drank beer and spent some time attempting to obtain a ticket entitling him to buy bottled beer at the approaching Christmas season. He got on a train at twenty minutes past five at Redfern station for the purpose of journeying to Punchbowl, where he lived. The train reached that station twenty minutes later, but before it came to a stop he jumped from the train to the platform and fell down, suffering the injury of which he complains. (at p31)

3. The Workers' Compensation Commission made an award in his favour on the ground that the injury had been received in circumstances entitling him, under s. 7 (1) (b) and (c) of the Workers' Compensation Act 1926-1951 (N.S.W.) to compensation. This decision was affirmed by the Full Court (Owen J. and Herron J., Street C.J. dissenting). It is desirable to set out textually s. 7 (1) (b) and (c) as they now stand.

"7. (1) (b) Where a worker has received injury without his serious and wilful misconduct on any of the daily or other periodic journeys referred to in paragraph (c) of this subsection, or on any of the other journeys referred to in paragraph (d) of this subsection, and the injury be not received - (i) during or after any substantial interruption of, or substantial deviation from, any such journey, made for a reason unconnected with the worker's employment or unconnected with his attendance at the trade, technical or other school, place of pick-up, or place referred to in subparagraph (i) of paragraph (d) of this subsection, as the case may be; or (ii) during or after any other break in any such journey, which the Commission, having regard to all the circumstances, deems not to have been reasonably incidental to any such journey; the worker (and in the case of the death of the worker, his dependants), shall receive compensation from the employer in accordance with this Act. An interruption of or deviation from any journey shall not be deemed to be substantial if, in the circumstances of the particular case, the nature, extent, degree and content of the risk of injury were not materially changed or increased by reason only of any such interruption or deviation.

(c) The daily or other periodic journeys referred to in paragraph (b) of this subsection shall be (i) between the worker's place of abode and place of employment; and (ii) between the worker's place of abode, or place of employment, and any trade, technical or other training school, which he is required by the terms of his employment or is expected by his employer, to attend". (at p32)

4. The learned judge constituting the Workers' Compensation Commission found that the interruption of the journey occasioned by the call at the hotel was a substantial interruption in fact but was not an interruption by reason whereof in the circumstances of the particular case, the nature, extent, degree and content of the risk were materially changed or increased. The result of this conclusion was to bring into operation the second of the two paragraphs of which s. 7 (1) (b) is composed, namely, the paragraph providing that an interruption or deviation shall not be deemed substantial if the nature, extent, degree and content of the risk were not thereby materially changed or increased. It accordingly made it necessary to treat the interruption as not a substantial interruption of or deviation from the journey within the meaning of the first of what it is convenient to refer to as the conditions of which the first paragraph of s. 7 (1) (b) is composed. Inasmuch as the interruption was not one to which the first condition of s. 7 (1) (b) applied, it was contended by the employer, with at least a prima-facie appearance of logic, that it must come within the words "any other break in any such journey" which occur in the second condition of s. 7 (1) (b). (at p32)

5. The argument for the employer was simple enough. The injury was received during or after a break in the journey. The break ex hypothesi was not a substantial interruption within the first condition; it must, therefore, be an "other break" within the second condition. All that remained was for the Commission to decide whether, having regard to all the circumstances, it was to be deemed not to have been reasonably incidental to the journey. The Commission made a finding on this question. It found that in truth the interruption was not reasonably incidental to any such journey. On that finding the employer maintained that his case was complete, that the interruption constituted a break, that it was not reasonably incidental, and since it was not a substantial interruption or deviation within the first, it fell within the second of the two conditions in s. 7 (1) (b) negativing a claimant's title to compensation. In substance this is the view which Street C.J. adopted. (at p32)

6. The second paragraph of s. 7 (1) (b), namely, that beginning "An interruption of or deviation from any journey shall not be deemed," &c., was added by Act No. 20 of 1951, s. 2 (b) (iv). Before it was so added there were only two grounds upon which an interruption or deviation that had taken place in fact could be excluded from the operation of the first of the two conditions stated in s. 7 (1) (b) with the consequence that the worker's title to compensation under s. 7 (1) (b) would not be lost. One ground was that the interruption or deviation was not in fact substantial. The other ground was that, though substantial it was in fact connected with the worker's employment or his attendance at the trade, school or pick-up place, &c. Logically speaking, it was only upon one or other of these grounds, unsubstantiality or some connection with the worker's employment, &c., that a break could come within the words "any other break" in the second of the two conditions stated in s. 7 (1) (b). (at p33)

7. In the present case substantiality in fact, as opposed to substantiality for the purpose of the second paragraph, exists. The view taken by the majority of the Supreme Court is in effect that the second paragraph could not be intended to operate to put into the second condition what hitherto must have fallen only within the first condition. The paragraph was obviously inserted in order to benefit the workman by taking the interruption out of the first condition and it ought not to be construed as at the same time operating to his detriment by consequently placing the interruption within the second condition. Owen J. said:- "There is no doubt that, as a piece of draftsmanship, the sub-section with its double negatives, and even without the amendment, is not an artistic piece of work, and in this respect the amendment does not improve it. But, if the construction for which the employer contends be placed upon the sub-section, the amending paragraph seems to produce no benefit to the worker although it was obviously intended to do so. If a break, substantial in point of time or space but deemed not to be substantial, is excluded from sub-par. (i), the worker's case must stand or fall by sub-par. (ii), and the amendment does not pretend to mitigate the effect of that paragraph. On the whole I think that the section should be construed as the learned Commissioner construed it. Sub-paragraph (i) must be read as dealing with all breaks which are substantial in fact, while sub-par. (ii) covers all breaks which are not substantial in fact. If, as here, a break is found to be substantial in fact but one which has not increased the risk it is still to be regarded as a substantial break but not one which would debar the worker from relief by throwing his case into sub-par. (ii). It is obvious that this construction may produce the result, mentioned by the learned Commissioner, that a worker who has made a substantial break in his journey for a purpose unconnected with his work may be in a better position than one who momentarily turns aside from his journey for a reason not incidental to it. But to construe the sub-section so as to take what I may call a 'non-risk-increasing substantial break' out of sub-par. (i) and put it into sub-par. (ii) would defeat what seems to me to be the underlying purpose of the amendment" (1953) 53 SR (NSW), at p 146; 70 WN, at p 88 . (at p34)

8. It must be conceded that the probability is high that the legislature was actuated by some such purpose as his Honour attributes to them, but it is another question whether the language used in the provision enacted is capable of effectuating such a purpose. The provision, as Owen J. points out, seems to have originated in the following passage in a judgment delivered by his Honour Judge Rainbow in the Workers' Compensation Commission in Moore v. Commissioner for Railways (1947) 21 WCR 182 :- "For my own part, I should have thought the law could easily have provided that if one came to the conclusion, even after a substantial interruption, that the nature, extent, degree and content of any risk run on a journey home was in no wise changed or increased and no added burden thrown on the employer by any additional risks that the man had undergone by reason of his delay, it might have been left in the discretion of the Commission to award compensation. However, the plain words of the section are that it must not be received during or after a substantial interruption and, as in my opinion injury was received during or after a substantial interruption, there must be an award for the respondent" (1947) 21 WCR, at p 183 . It will be seen that the legislation which the learned judge commended to the legislature would have covered not only the first condition in s. 7 (1) (b) but also the second; for his Honour said it might have been left in the discretion of the Commission to award compensation in the case which he described substantially in the language adopted by the second paragraph inserted by Act No. 20 of 1951. But it would not be logical to deduce from this that the legislative intention coincided with that of the learned judge. For it may be said that the deliberate departure of the legislature from the terms employed by his Honour in stating the conclusion that should ensue from a finding that the risk was not changed or increased tells in the opposite direction. It tends to confirm the view that the draftsman in truth intended to deal only with the first of the two conditions and not with the second. (at p34)

9. We have formed the opinion that the language in which the legislature has expressed its intention is not susceptible of the interpretation which the majority of the members of the Full Court have adopted, however plausible may be the conjecture that the legislature intended to bring about the result which that interpretation effects. The interpretation of the first of the two conditions in s. 7 (1) (b) is controlled by the second paragraph which Act No. 20 of 1951 inserted and, accordingly, an interruption cannot be substantial if it is an interruption which in the circumstances of the particular case did not change or increase the nature, extent, degree and content of the risk of injury. It is true that the words "shall not be deemed to be substantial" are used and it is true that the word "deemed" is often employed where the legislature requires an assumption to be made contrary to fact. But once, in obedience to the command expressed in the paragraph, the interruption is not deemed to be substantial, it ceases for any of the purposes of s. 7 (1) (b) to be substantial, and accordingly it cannot be an interruption within the meaning of the first condition in s. 7 (1) (b). The interruption must be a break in the journey. An interruption could be nothing else, however unsubstantial it might be in fact. We cannot regard the word "break" as requiring a more prolonged suspension of the journey than the word "interruption" does, and, ex hypothesi, before the second paragraph applies there must be an interruption. (at p35)

10. There may be something to be said for the view that "other break" in the second condition of s. 7 (1) (b) means other than a substantial interruption or deviation and does not mean simply other than a deviation which comes within the first condition of s. 7 (1) (b). A substantial interruption might not come within that condition because it was connected with the worker's employment, &c., and it is possible that an interruption connected with the worker's employment was not intended to come within the second condition of s. 7 (1) (b). But, assuming that "any other break" means "any break other than a substantial interruption or substantial deviation" and has not the more logical meaning of "any break other than a break falling within the description in the previous condition", it still remains true that the break cannot be considered a substantial interruption because of the application to it of the second paragraph added by Act No. 20 of 1951. To avoid this result it is necessary to find an implication in the provision. But even if there be room for the conjecture that the legislature did not intend to produce the result which its language requires, there appears to us to be no material in the provision from which an implication could be made. (at p35)

11. In our opinion the reasons of Street C.J. are correct. We think the appeal should be allowed and the order of the Full Court discharged. In lieu of that order an order should be made discharging the award for the applicant and answering the questions in the case stated as follows:-

Question (i) - The Commissioner should have so made an award
for the respondent.
Question (ii) - This question does not arise.
Question (iii) - It is unnecessary to answer this question. (at p36)

ORDER

Appeal allowed with costs. Order of the Supreme Court discharged. In lieu thereof order that the questions in the case stated be answered as follows:-

Question (i) The Commissioner should have made
an award for the respondent to the application, Selby
Shoes (Australia) Pty. Ltd. Question (ii) This question
does not arise. Question (iii) It is unnecessary to
answer this question.

The respondent to this appeal to pay the costs in the Supreme Court of the case stated.