Adcock v Commonwealth [1960] HCA 24; (1960) 103 CLR 194 (19 May 1960)

HIGH COURT OF AUSTRALIA

ADCOCK v. THE COMMONWEALTH [1960] HCA 24; (1960) 103 CLR 194

Workers' Compensation

High Court of Australia
Dixon C.J.(1), Fullagar(2), Kitto(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Workers' Compensation - Commonwealth employees - Member of Permanent Air Force - Living in camp - Off duty - Excursion from camp to attend theatre - Injury sustained between camp and theatre - Whether entitled to compensation - "Travelling to or from his employment" - Commonwealth Employees' Compensation Act 1930-1956, ss. 4 (1), 4A (2), 9, 9A, 20.

HEARING

Sydney, 1959, September 15, 16; 1960, May 19. 19:5:1960
APPEAL from the Magistrates Court, Brisbane, Queensland.

DECISION

May 19.
The following written judgments were delivered: -
DIXON C.J. This is an appeal by special leave from the Magistrates Court at Employees' Compensation Act 1930-1956. The appellant was badly injured in a motor accident on the evening of Thursday, 10th July 1958, as he drove from Amberley R.A.A.F. station or base to Brisbane. He claimed compensation under s. 9A of that Act. He was a leading aircraftsman of the R.A.A.F. quartered at the R.A.A.F. establishment at Amberley. His actual work was that of a motor transport fitter at No. 3 aircraft depot. The information before us about the camp or establishment, the manner in which it is commanded and administered, the orders and instructions as to leave and the theoretical as well as the practical duties of the appellant is indeed exiguous. It is said that the establishment is under command, but the personnel like Adcock were at liberty to go away from the "camp" outside hours when "on duty". Adcock usually worked as a fitter from 7.40 a.m. to 4.50 p.m., when he was stood down. He lived in the camp in a hut which he shared with another member of the Air Force. On Thursday, 10th July 1958, a film was advertised to be shown at the Temperance Hall, Brisbane, and he and a companion designed to see it, driving to Brisbane for the purpose in Adcock's own car. (at p197)

2. He was "stood down" at the usual time. There happened to be a car in the car park which needed some attention. It belonged to a friend who was ready to make, in respect of any work he did upon it, a contribution to the funds of a Church Young People's Group in which they were both interested. Adcock spent half an hour or so putting the car right. Then he had his meal, cleaned himself up at the hut and went off in civilian clothes upon his journey to Brisbane. On the road he met with an accident resulting in serious injuries. (at p197)

3. Section 9A (1) of the Act provides that where personal injury by accident is caused to an employee while he is travelling to or from (a) his employment by the Commonwealth; (b) . . . the Commonwealth shall, subject to the Act, be liable to pay compensation in accordance with the Act as if the accident were an accident arising out of or in the course of the employment. Sub-section (2) provides among other things that in the section "travelling" means travelling by the shortest convenient route for the journey. It will be noticed that there is no definition or description of the journey in terms of two termini - only "to or from the employment" - and it is difficult therefore to apply the expression "shortest convenient route". But doubtless it was supposed that every journey was commenced with an end in view. (at p197)

4. By s. 4A (2) it is provided that except as provided by the section the Act applies to, and in relation to, a member of the Defence Force. The exceptions are in the remaining sub-sections of s. 4A but they are not presently material. Further, the definition of "employee" in s. 4 (1) includes a member of the Defence Force to whom the Act applies. I see no reason myself why the appellant should not be considered an "employee" travelling from his employment by the Commonwealth when personal injury by accident was caused to him. It appears to me that the case falls within the words of the Act and that is enough. There is no reason why we should mould them to accord with what to some may seem more reasonable, still less restrict them. It is a much criticized piece of drafting and is certainly a difficult statute. Some of the consequences may not have been foreseen but at all events they appear to me to be within the intention expressed. In the application of s. 9A to the present case there are some points in which, rightly or wrongly, my opinion is more free from doubt than perhaps an opinion about the meaning and effect of anything contained in this notoriously contentious statutory text should be. (at p198)

5. In the first place I do not think that it is possible to read s. 9A (1) as referring to travelling to or from the employee's abode, dwelling or residence from or to his employment. It is not only because the words are not there and it would not be in accordance with the canons of interpretation to imply them or to import the notion or idea they connote. It is also because at one time the necessary words were in the provision and were actually taken out. This was done by Act No. 61 of 1948, s. 4, by which the version of s. 9A as it was introduced by Act No. 8 of 1944 was replaced. In the first version the expression was "travelling to or from work" and by sub-s. (2) that expression was to mean "travelling between the employee's place of abode and place of employment"; at the same time the expression was extended, artificially, to include travelling between those two places and technical schools and the like. Then by Act No. 27 of 1951, s. 4, the words "place of" were removed. (at p198)

6. The second matter about which I speak is this. I do not think that it is possible to reject the application of s. 9A to employees who live at their place of work or to refuse to give the provision a full operation with reference to their situation. It is unnecessary to say that in very many branches of Commonwealth civilian employment there are persons who would be affected by such a view and if one turns to the regulation giving the list of "Authorities of the Commonwealth" to which the Act applies by virtue of s. 22 it becomes apparent that there would be an even wider application of the limitation: see reg. 15 of the Employees' Compensation Regulations (1953, No. 22). (at p199)

7. The reason why I think such a limitation or modification is not possible is simply that it appears to me to be contrary to the language of s. 9A (1) which is quite general and therefore neither contemplates nor, as I would think, admits of any exception or qualification. (at p199)

8. It must be borne in mind that it is by Act No. 61 of 1948 (assented to on 6th December 1949 and commencing on 3rd January 1950) that servicemen were first brought within the Act. It was done by an amendment of the definition of "employee". Section 4A (2), directly applying the Act to a member of the Defence Force, was added by s. 3 of No. 27 of 1951. It is therefore correct to regard the question in the first instance not in relation to the armed services but from the point of view of civilian employees of the Commonwealth living at the place of employment, whether a lighthouse, a linesmen's camp or some more attractive abode. Moreover it must be remembered that not all Commonwealth ships are naval vessels. Once the question is settled as to how the enactment applies to civilian employees who live at or in connexion with the place where work is done or operations are carried on, the analogous application of the provisions to servicemen living in barracks, camps, service establishments, ships and so on seems to me to follow as a matter of course. (at p199)

9. The third thing to which I refer is that whatever may be the correct application of the expression "travelling to or from his employment" the word "employment", as it seems to me, must in that phrase as elsewhere include all the incidents of employment and cannot be limited to actual work. I think that it may be said with some confidence that whatever otherwise may be the operation of s. 9A it was intended that the potential right to compensation it confers upon the employee should attach where that given by s. 9 (1) ceases or ends; and that potential right does not cease to apply until the employee is outside the course of employment defined by reference to its incidents and adjuncts, to use a somewhat indefinite yet well-known expression. (at p199)

10. The difficulty of the case for me, however, is to know whether and how far the decision of the Court in The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 governs the outward journey commenced by the appellant Aircraftsman Adcock to Brisbane for the purpose of attending the exhibition of the moving picture. In Wright's Case [1956] HCA 79; (1956) 96 CLR 536 it was an inward journey to the Bandiana military camp by a soldier of the rank of private serving in the R.A.E.M.E. and attached to the workshops in the Receipt and Issue Section. His duties were in relation to checking up and logging trucks and tanks entering the workshops for repair. He went off duty on a Friday afternoon and was to have resumed duty on Monday morning. He lived at the camp which he had left, as he was at liberty to do, without a leave pass on Saturday morning, and was making his way back on foot to the camp on Saturday evening when he was killed by a passing car. A majority of the Court, Webb, Fullagar and Kitto JJ., held that when the accident occurred he was not "travelling to his employment by the Commonwealth" within the meaning of s. 9A (1). So far as s. 9A is concerned it was the opinion of Webb J. that "to support a claim for compensation the accident to a civilian employee must have arisen . . . when travelling . . . to or from a state of activity called 'employment' as distinct from the place where that activity takes place" (1). This, as I understand it, his Honour regarded as requiring in the case of a soldier the equivalent of "travelling . . . when going on leave from the camp or returning to the camp on the expiration of leave; but not otherwise for personal reasons" (1956) 96 CLR, at p 551 . The learned judge then expressed the ground of his decision in the following passage: "Such being, in my opinion, the effect of the legislation I revert to the facts to see whether they support the claim. I readily conclude that they do not, for the reasons that when the deceased was killed he might have been returning to the camp intending to eat or sleep there, and not to resume his duties but to continue on leave and to depart from the camp again and to return to it before Monday, as he was at liberty to do provided his leave was not cancelled and he did not go more than one hundred miles from the camp; or he might have been returning intending to terminate his leave and resume his military duties. There is no presumption in favour of an intention to resume his military duties, as there would be if he had been killed on the Sunday night when returning to the camp. Then one intention was as likely to have been entertained by the deceased as was the other, and so the claimant failed to discharge the onus of proof that rested on her, and her claim was rightly rejected . . ." (1). I do not think that the view upon which his Honour acted in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 has any application to the situation of Adcock. (at p200)

11. He had formed the intention of going to the Temperance Hall in Brisbane earlier in the day of Thursday, 10th July 1958; he was at liberty to leave the camp, and was proceeding to go from the actual performance of his work to do the additional half-hour's work for his friend in putting his car in order, then to a meal and to his hut to clean up. After that he set off on his intended expedition. I do not know that there is anything in any of the judgments in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 to fix the exact terminus a quo of the "travelling from his employment" of a serviceman who is an artificer quartered in a military, naval or air force establishment, but so far as the reasons of Webb J. are concerned the analogy would appear to lie in the hypothesis mentioned by his Honour of Wright's returning on Sunday evening in readiness for Monday morning and that favours the view that e converso Adcock was travelling from his employment. (at p201)

12. In the judgment of Fullagar J. the element of purpose is associated with "the duties of the employment" in terms which may be thought to involve a stricter or closer connexion. There are two passages extracts from which will suffice to make clear what was the view of the meaning of the expression "travelling to or from his employment" which his Honour adopted. The first is this : ". . . I think that there must be a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties" (1956) 96 CLR, at p 552 . The second passage is as follows : "A man cannot, in my opinion, be properly said to be travelling to his employment unless the purpose of his travelling is to assume the duties of his employment. The notion of travelling from employment is perhaps a little more difficult, for the reason that it is more natural to characterize a journey by reference to its point of destination than by reference to its point of departure. But a man cannot, in my opinion, properly be said to be travelling from his employment unless the occasion of his journey is the cessation for the time being of the duties of his employment and his primary purpose is to leave those duties behind him" (1956) 96 CLR, at p 553 . Had there been some means of showing that the purpose with which the deceased soldier in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 set out on his return to camp was to await his return to actual work on Monday it seems that Fullagar J. would have admitted the possibility of his fulfilling the test stated in the foregoing extract. For his Honour said in a passage too long to quote in full - "It is not made to appear that his immediate purpose in going to the camp was to enter upon the duties of his employment" (1956) 96 CLR, at p 554 . After referring to the existence of a slightly higher degree of probability that the soldier had intended to sleep in camp, Fullagar J. proceeded : "But, whether or not our ignorance is unfortunate, we simply do not know what his purpose was in going to the camp. And, unless it is proved that his purpose was to resume the duties of his employment (which I think, on the whole, improbable) compensation is not, in my opinion, payable. The case may from one point of view seem a hard one, but I am unable to say that it falls within s. 9A" (1956) 96 CLR, at p 554 . Now, when his Honour speaks of the purpose of entering upon the duties of his employment, that I take to mean "in order that the employee should be in readiness for his duties". If the intervention had been contemplated of Sunday as a day of repose for him in camp I take it that would have satisfied the test. Correspondingly, I do not understand that the motive for departure from camp must be the immediate escape from the scene of labour. What seems to be contemplated is that the cessation of the soldier's labours (and of course the fact of his being entitled to leave, whether particular or as in the case of the deceased in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 general) shall be the occasion of his departure from his "employment". It is obvious that when s. 9A (1) provides for travelling from the employment it is referring as a typical case to the cessation of the hours of labour as a reason for departure. But it can only be a typical case. Kitto J. alone adopts as a ground for his decision the view that the terminus ad quem in the case of the outward journey "from the employment" must be the abode or residence. In that view with great respect I differ from his Honour and I think that I am at liberty to do so. The second reason given by Kitto J. is that there was "simply nothing in the proved facts from which it can be thought more probable than not that his" (the soldier's) "purpose in making the journey to the camp was to get to his duties" (1956) 96 CLR, at p 559 . But his Honour said : "If the deceased soldier in the present case had been killed on the Sunday night instead of the Saturday night, it might have been inferred from circumstances that when the car struck him he was in the course of returning from his week-end leave in order to take up his duties at 7.30 on the following morning ; and accordingly his journey might have been described as a journey to his employment, notwithstanding that in the normal course it would bring him to the camp earlier than was strictly necessary" (1956) 96 CLR, at p 559 . One would suppose that if the soldier had returned to camp to sleep and be ready for work in the morning then it would be right to say that he had "travelled to his employment". But that appears to me a good reason for saying that if he ate a meal and cleaned himself up before leaving for Brisbane he was none the less "travelling from his employment". (at p203)

13. For the reasons that I have given I do not think that the decision of the majority of the Court in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 when properly understood is in any way opposed to the conclusion that Adcock was travelling from his employment when he was injured. That conclusion I base upon the simple ground that whatever may be considered to be his employment at the Amberley R.A.A.F. establishment he was travelling from it to Brisbane when he was injured even if his employment consisted of his actual work as a motor transport fitter ; what he did before leaving the R.A.A.F. establishment in his car formed only reasonable incidents before or in preparation for his departure. (at p203)

14. Of course left to myself I would say for reasons which can be sufficiently inferred from what I wrote in Wright's Case (1) that he did not commence to travel from his employment until his car emerged from the R.A.A.F. establishment. But whenever the "journey" or departure from his employment should be regarded as commencing I am unable to see that he was not travelling from his employment when the personal injury by accident befell him for which he seeks to recover compensation. (at p203)

15. I would allow the appeal from the order of the magistrates court which dismissed his appeal from the rejection of his claim by the Delegate of the Commissioner of Employees' Compensation. (at p203)

FULLAGAR J. It is quite clear, I think, that the injury to the appellant did not arise either out of or in the course of his employment by the Commonwealth within the meaning of s. 9 of the Act. The only question seems to me to be whether he can maintain a claim for compensation under s. 9A. (at p203)

2. In The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 the question was whether the respondent's son had been "travelling to" his employment when the accident which caused his death occurred. In the present case the appellant claims that he was "travelling from" his employment when the accident occurred. Inherently and in the abstract, the former expression is less difficult than the latter, but, in relation to members of the Defence Force who normally live, as well as carry out the duties of their employment, in a camp or in barracks or in a ship, both expressions give rise to very great difficulty. Both import the existence of some connexion between the travelling and the employment. The employment must be in some sense the occasion of the travelling. The conceivable circumstances of particular cases are so multifarious that it seems hardly possible to frame a single generalization which will express the necessary connexion and cover all cases that may arise. But there is a passage in the judgment of Kitto J. in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 which seems to me to state correctly the general nature of the connexion that must subsist. His Honour, after analysing the language of the section, said (1956) 96 CLR, at pp 557, 558 : "The common expressions 'going to work' and 'going home' convey the notions which stand in broad opposition to one another. Accordingly I should understand s. 9A (1) (a) to be referring only to personal injury by accident which is caused to an employee while travelling (in the defined sense) between a place at which he is to perform, or has been performing, duties of his employment by the Commonwealth and a place which is his place of abode, either permanent or temporary. This view accords with that which was taken by Napier C.J., in the Supreme Court of South Australia, on a similarly expressed section in the Seamen's Compensation Act 1911-1949 (Cth). His Honour said : 'It seems to me that "travelling to or from his place of employment" refers to a seaman who is joining his ship or going home. It may, perhaps, apply when a sailor is going on or returning from leave, and whether the place in which he spends his leave is his permanent home or a temporary residence, but it does not cover a seaman going to a race meeting, or to a public house for a drink, or, as in the present case, for a stroll ashore to post a letter' : Davey v. Union Steamship Co. of New Zealand Ltd. (1953) SASR 35, at pp 38, 39 ." (at p204)

3. I think, with respect, as my brother Windeyer thinks, that even the statement quoted above may be found a little too narrow - at any rate, if we read the words "place of abode" as strictly equivalent to "dwelling-place". For a national service trainee in the Citizen Forces (who is, I should think, within the Act) might meet with an accident while travelling directly between his place of training and his place of civilian employment, and it might well be thought that such a case was a case of travelling to or from his place of employment by the Commonwealth. But no legitimate extension of the meaning of the term "place of abode" can help the appellant here. I do not think that his appeal could be allowed consistently with Wright's Case [1956] HCA 79; (1956) 96 CLR 536 and it should, in my opinion, be dismissed. (at p204)

KITTO J. In the Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 I expressed views as to the application of s. 9A of the Commonwealth Employees' Compensation Act 1930-1954 in the case of a member of the permanent defence forces who resides in a military camp or similar establishment and to whom personal injury by accident is caused while going to or from the establishment during a period when he is off duty and at liberty to pursue his own concerns. It may well be that the language I employed (1956) 96 CLR, at p 557 to describe the "broad opposition" which I was concerned to maintain might with advantage have been less rigid. For example, I think on reflection that a part-time soldier going from his civil employment to a military parade would be travelling to his employment by the Commonwealth in the sense of the Act. But that, I think, would be because his living away from his place of military employment divides his life into opposed compartments geographically separated, so that moving from the one to the other satisfies the notion of a "travelling" to or from his employment by the Commonwealth. The ideas which I was endeavouring to express in Wright's Case (1956) 96 CLR 536 I have seen no reason to alter, and in the present state of judicial opinion I think I may properly adhere to them. (at p205)

2. Accordingly I would dismiss the appeal. (at p205)

MENZIES J. The appellant, who at all relevant times was a member of the permanent air force, appeals by special leave from a decision of the Magistrate's Court in Queensland dismissing his appeal from the determination of the Delegate of the Commissioner for Employees' Compensation disallowing his claim for compensation made under the Commonwealth Employees' Compensation Act. Special leave was sought and granted following Martin v. Commissioner for Employees' Compensation (1953) QSR 85 and Goward v The Commonwealth [1957] HCA 60; (1957) 97 C.L.R. 355.. (at p205)

2. The facts are not in dispute. The appellant was stationed at Amberley where he lived in the base camp and worked as a motor transport fitter at No. 3 aircraft depot. On 10th July 1958 he finished his day's work at 4.50 p.m. and was then off duty until 7.40 a.m. the next day. On ceasing work, he went to a car park within the confines of the station and there he worked upon a friend's car which he was repairing on terms that the owner would make an appropriate payment to a church group of which the appellant was a member. At about 5.30 p.m. he went to the mess, had tea, and then at about 6.30 p.m. he drove away from Amberley to go to the Temperance Hall, Brisbane, to see a film. His seeing the film had nothing to do with his duties. While travelling from Amberley to Brisbane, his motor car overturned and he suffered the serious injuries for which he sought compensation, relying upon s. 9A of the Commonwealth Employees' Compensation Act which imposes liability upon the Commonwealth to pay compensation where personal injury by accident is caused to an employee while he is travelling from his employment by the Commonwealth. (at p206)

3. In The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 the application of the Act to members of the defence forces of the Commonwealth was examined, and the difficulties occasioned by including members of the defence forces in the description of employees of the Commonwealth were exposed. The present case again demonstrates how inappropriate it is to attempt to apply to sailors, soldiers and airmen who are bound to continuous service during the continuance of their engagement and who are often called upon to live in ships, in camps or upon stations, an Act framed to deal with civilian employment where an employee is either on duty or off duty. Presumably a sailor "off watch" or "of the watch below" asleep in his hammock, would be entitled to compensation if he suffered injury upon being thrown to the deck by the violence of a collision ; and how would a sailor stand if, when off duty, he went ashore in a foreign port and was permanently incapacitated in a motor collision or by the assault of thugs ? Would such a sailor be in the course of his employment, notwithstanding that he was on leave and away from his ship, and to that extent off duty ? If so, he would be entitled to employees' compensation ; if not, it seems he would be entitled to nothing : s. 14 (2) of the Act. (at p206)

4. The fact that members of the permanent naval force, the active permanent military force and the permanent air force are bound to continuous service during the continuance of their engagement would afford some ground for treating the appellant, being as he was a member of the permanent air force, as "in the course of his employment by the Commonwealth" when he was injured in the interval between stand down and starting work. This submission, however, was not made because it was properly thought to be contrary to the decision in The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 where McLean, whose death while travelling to the military camp at Bandiana gave rise to the claim, was a member of the permanent military force. For the appellant, it was contended that he was travelling from his employment by the Commonwealth when he was injured, but it seems to me that The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 is also conclusive against the submission which the appellant does make. In that case where, as I have said, McLean was travelling to the camp at Bandiana where he was stationed, Fullagar J. said : "It is, I think, a fair enough inference that he was on his way to the camp at Bandiana. But that is not enough. It is not made to appear that his immediate purpose in going to the camp was to enter upon the duties of his employment" (1956) 96 CLR, at p 554 . Likewise, Kitto J. said : " . . . his presence within the confines of his camp, by his own choice, during a period when he is off duty and is free to go where he wishes, is not enough to show that he is then in the course of his employment. Consequently, when he is going to the camp at a time which is prima facie unrelated to the resumption of his duties at the termination of his leave, it seems to me impossible to conclude, if no more is known, that he is then travelling to his employment" (1956) 96 CLR, at p 562 . Here the appellant had concluded the duties of his employment in the sense used by their Honours in the quotations I have just made before he went to the park to repair his friend's motor car. He had stopped work and was not due to start again until 7.40 the next morning, and during the intervening time he was off duty and free to go where he wished. In the judgment of the minority in Wright's Case (1956) 96 CLR 536 , McLean was "travelling to his employment" by proceeding to his camp where on arrival he would at once have been under military discipline, but this view did not prevail and its rejection in that case involves the conclusion in this case that the appellant was not travelling from his employment when he left Amberley to travel to Brisbane. The decision in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 denies that a member of the permanent forces is in the course of his employment by the Commonwealth when he is off duty ; it decides that when no more appears than that such a member is travelling to or from the camp where he lives and works, it cannot be concluded that he is travelling to or from his employment by the Commonwealth ; and for the purposes of s. 9A it confines the conception of "employment by the Commonwealth" to or from which he travels to the work that it is the duty of such a member to perform. That decision means that this appeal must fail. (at p207)

WINDEYER J. The Commonwealth Employees' Compensation Act 1930-1956 deals comprehensively with civilian employees of the Commonwealth of all grades, and with members of the Defence Force (with certain stated exceptions) of whatever rank. The members of the "Defence Force" thus included are, I assume, persons who are members of the Defence Force, as constituted by the Defence Act s. 30, consisting of the Naval, Military and Air Forces of the Commonwealth, comprising both Permanent Forces and Citizen Forces and active and reserve personnel. The application of s. 9A to this large number of civilians, diversely employed, and also to sailors, soldiers and airmen inevitably raises some difficult questions. (at p208)

2. The appellant here was a member of the Permanent Air Force. He was thus an employee for the purposes of the Act. His rank was that of leading aircraftman ; his mustering was as a mechanical transport fitter. He was stationed at Amberley, an R.A.A.F. base which is the location of No. 3 Aircraft Depot to which he belonged. On 10th July 1958 he finished work at 4.50 o'clock in the afternoon, the usual time of stand-down. He was then off-duty, and, in the ordinary course, would not be required to report again for duty until 7.40 o'clock on the following morning. He was free to leave the station if he wished, and to go out in civilian clothes. Apparently he did not have to be back by any particular hour provided he was ready for duty in the morning. Nevertheless, as I understand the matter, he was not authorized to live out. His quarters were at the station, and his meals were provided in the airmen's mess there. On ceasing duty on the afternoon in question the appellant went to the station car park, where for about half-an-hour he did some work on a friend's car which was parked there. Then at about 5.30 o'clock he went to his quarters and met a comrade who was quartered in the same hut. They went first to the mess for the evening meal, then back to their hut where they changed into civilian dress in readiness for going out. They were intending to go to Brisbane in the appellant's car, which he kept on the station car park. The purpose of the journey was to see some films then being shown at the Temperance Hall, Brisbane. They left Amberley at about half-past six. Before reaching Brisbane they were involved in an accident. The appellant was very seriously injured. He claimed compensation under the Act. His claim was rejected by the delegate. An appeal pursuant to s. 20 of the Act was dismissed by a stipendiary magistrate. From that decision this appeal is brought. (at p208)

3. The appellant's case is simple. Section 9A of the Act provides that, "Where personal injury by accident is caused to an employee while he is travelling to or from his employment by the Commonwealth . . . the Commonwealth shall . . . be liable to pay compensation . . . as if the accident were an accident arising out of or in the course of his employment". He was, he says, travelling from his employment when the accident occurred. Therefore, he says, he is entitled to compensation. The whole question is was he travelling from his employment within the meaning of s. 9A? (at p209)

4. That section reflects a policy common in Australian workmen's compensation statutes. The journey that a worker has to make to get to and from his place of work is treated as being within the course of his employment. The scope of the additional protection is clear enough when the statute speaks of the journey as being between the worker's place of abode and place of employment. When first enacted in 1944 s. 9A was in that form. The terminus ad quem and the terminus a quo of the journey were specific ; and the "shortest convenient route" between them was ascertainable. But, although the meaning of the words was then clear, the section read literally could have strange results. Its words would have covered an employee travelling from his home to his place of employment for some purpose quite unconnected with his duties - as, for example, a postman who on a Sunday went from his place of abode to post a letter at the post office where he worked. And on the other hand, an employee who was travelling to perform the duties of his employment would have been outside the protection if his journey did not begin at his place of abode - as for example, a national service trainee or other member of the Citizen Forces going straight to a night parade or week-end bivouac after ceasing work for a private employer. But the section was amended in 1948, bringing it to its present form : "travelling to or from employment by the Commonwealth". One end of the journey is thus now unspecified, yet the section still requires that the travelling should be by the shortest convenient route for the journey ; and it still refers to substantial interruptions of the journey and substantial deviations. (at p209)

5. The decision of this Court in The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 was much discussed in argument, but I do not think it really determines the present case. Kitto J. said there that s. 9A (1) (a) is to be understood as "referring only to personal injury by accident which is caused to an employee while travelling (in the defined sense) between a place at which he is to perform, or has been performing, duties of his employment by the Commonwealth and a place which is his place of abode, either permanent or temporary" (1956) 96 CLR, at p 557 . The Chief Justice, however, pointed out that the legislature had deliberately removed from the definition of "travelling" all reference to the place of abode. He concluded therefore that "the problem cannot be answered by devising a terminus a quo or a terminus ad quem by implication" (1956) 96 CLR, at p 544 . McTiernan J. agreed and said that the abode of the employee "cannot be supplied by implication as the starting or finishing point" (1956) 96 CLR, at p 548 . Webb J. and Fullagar J. did not have to make any pronouncement on this aspect. Their view was that it did not appear from the facts of that case that the deceased soldier's purpose in going back to camp on Saturday night, when he had local leave until Monday morning, was to enter upon the duties of his employment. Therefore he was not, they considered, shown to have been travelling to his employment within the meaning of the section. Kitto J. adopted this view of the facts as a second ground for rejecting the claim in that case. I am, with respect, unable to accept without some qualification the precise form in which Kitto J. stated his first ground ; for I respectfully agree with the Chief Justice that, Parliament having deliberately removed the place of abode as one terminus of the journey, the Court should not restore it by implication. Moreover, to limit journeys falling within s. 9A to those between place of employment and place of abode, permanent or temporary, would, in my opinion, too greatly restrict its operation ; for, as I have said above, some employees of the Commonwealth, especially part-time employees such as members of the Citizen Forces, often set out for the places of their employment by the Commonwealth from places other than their abodes. But I do agree entirely with what I take to be the underlying assumption of the view of Kitto J., namely that s. 9A can only apply when the employee has a place of abode temporary or permanent away from his place of work. It cannot, I think, have any application in the case of an employee who is required to "live in" at his place of employment while he is in fact living in. The expressions "shortest convenient route for the journey", "substantial interruption" or "substantial deviation" can have no sensible meaning in such a case. An excursion made by a man living at his place of employment for the purpose of going to the pictures in his hours off duty is not related or incidental to his employment. It is not comparable with the journey that an employee living at home makes to get to his work or to go home from his work. And it is not comparable with the journey that a man on being posted to a particular place has to make to take up his duties there. It is comparable rather with an excursion that for his own purposes an employee living at home makes in the evening after he has got home. In Davey v. Union Steamship Co. of New Zealand Ltd. (1953) SASR 35 , Napier C.J., in the passage to which my brother Fullagar has referred in his judgment, expressed the distinction in the case of a seaman. The same considerations should, I think, govern all cases where a Commonwealth employee is, as a condition of his employment, required to live on the premises where he works - whether he be, for example, a domestic servant in a government hostel, a seaman on a ship, a soldier in barracks or an airman quartered at the station where he performs his duties. It is not really necessary that I say any more, because I think s. 9A could have no operation in the present case, the appellant being at the time of the accident an airman quartered in barracks. But counsel for the Commonwealth expressly refused to accept this proposition when invited to do so. So I shall add some observations on some of the arguments that he pressed upon us. (at p211)

6. It was suggested that the effect of Wright's Case [1956] HCA 79; (1956) 96 CLR 536 is that an employee living-in can, when returning from an excursion in offduty hours, be travelling to his employment, if the immediate purpose of his return is to resume duty. I do not think that this follows from that decision. And I find much difficulty in the idea that the immediate purpose or intention which the employee has in mind rather than the place to which he is going can be decisive of whether or not he is travelling to his employment. That difficulty is not lessened by the suggestion that that purpose or intention is to be determined by an inference drawn from the period of time which would elapse between the expected time of arrival at the place of employment and the hour when he was to go on duty. When, as here, the meaning of travelling from employment as distinct from travelling to employment is in question, the fallacy of the suggested approach becomes the more apparent. It was said on behalf of the Commonwealth that if the appellant had gone straight to the pictures from the very part of the station where he was when he ceased work he would have been travelling from his employment. But going to the car park and there working on his friend's car for about half-an-hour before leaving for Brisbane, it was said, made all the difference. The appellant when walking from the part of the station where he was at stand-down to the car park was, it was said, travelling from his employment, but this journey ended at the car park. But such distinctions as were urged are remote from reality. A soldier who is dismissed on the parade ground is not travelling from his employment when he goes to his lines. A naval rating going from his duties to the mess deck could not be said to be travelling from his employment. And, if he were a liberty man, would his position ashore be different because he had not gone in the first liberty boat but had remained aboard for a time for some purpose of his own? Such considerations as these strengthen me in my conclusion that s. 9A has no application to excursions in off-duty hours by employees who under the terms of their engagements live in. I may add that a corollary of the non-application of s. 9A is that, even when off duty, such employees are still within the sphere of their employment while on their employer's premises, even though they be free to go out if they wish. An injury to them there will be prima facie within the course of their employment under s. 9. This, I think, follows from what has been said in cases relating to persons in continuous employments, such as seamen and domestic servants : Northumbrian Shipping Company, Limited v. McCullum (1932) 101 LJ (KB) 664 ; (1932) 48 TLR 568 and Weaver v. Tredegar Iron and Coal Company, Limited (1940) AC 955 . If, however, such an employee does go out for his own purposes, he is not within the course of his employment while he is out (Charles R. Davidson & Co. v. M'Robb or Officer (1918) AC 304 ). A man who although living in accommodation provided by his employer has no duty to do so is, of course, in a different position (see Philbin v. Hayes (1918) 87 LJ (KB) 779 ; Alderman v. Great Western Railway Company (1937) AC 454 ). Every case depends upon its own facts. But ordinarily members of the services who are serving in a ship or quartered in barracks or camp live there because of the nature of their employment, even though they might have had permission to live out had they wished. The ship to which a sailor belongs, the camp or barracks where a soldier is stationed is not just the place where he works or the place where he is given board and lodging. Once a sailor comes aboard, once a soldier passes the quarter-guard, he becomes and remains subject to the discipline of his ship or station, whether he goes on duty forthwith or becomes a member of the watch below or is off-duty in his lines. It is especially clear that men in the services are, while within the precincts of their establishments, within the sphere of their employment. The question in this case arises, however, because the appellant lived where he worked, not because he was a member of the Air Force. But I do not overlook that, as members of the Court pointed out during the hearing, special difficulties arise in applying the Act to members of the Navy, Army and Air Force. In peace time the position of a member of the forces whose duties are those of a tradesman rather than a combatant is, for practical purposes, in many ways not unlike that of any other Crown employee performing similar tasks. In a legal sense it is, however, essentially different. The serviceman who does not perform his duty, or who leaves his employment, does not just break a contract. He commits an offence. He can be apprehended and forcibly brought back to his duty. The resemblances between a man living in accomodation provided by his employer at or near the place of his work - a worker in a construction camp for example - and a member of the services can blur the fundamental distinction between their positions in law. (at p213)

7. Fullagar J. in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 speaking of members of the defence forces said : "In effect they live in the place where the duties of their 'employment' are performed d they do not travel regularly to and from their employment. It does not, of course, follow that they are excluded from any benefit under s. 9A. They will from time to time go on leave, and return from leave" (1956) 96 CLR, at pp 553, 554 . It was sought to apply this statement here - by saying that the appellant was on leave and was travelling from his employment to the Temperance Hall in Brisbane, the destination he had in view. But freedom to go out at the end of the day's work is not going on leave in any relevant sense. Leave for this purpose means periods of furlough, annual recreation leave, special leave and so forth, as provided for in the case of a member of the Air Force by Air Force Regulations, regs. 120-150. During such leave an employee who was living-in is for the time living elsewhere. In the services the distinction is between "local leave", given generally to all men off-duty at the end of the day's work, and, leave of absence, given to an individual for a period during which he would not be counted as present with his unit. In the report in Wright's Case [1956] HCA 79; (1956) 96 CLR 536 the deceased soldier is said to have been on local leave. He was in fact entitled to go anywhere within a hundred miles of his camp at Bandiana - so much easier has travel, and so much lighter has discipline, become since the one mile limit in the eighteenth century articles of war (see Simmons on Courts Martial 7th ed. (1875) p. 85). But whether or not a man has leave so that he can when setting out be said to be travelling from his employment is a question of fact. It does not depend upon any esoteric doctrine of military law. It is the difference between a domestic servant's day off and her annual holiday. It may be that in some circumstances an employee living-in could, when going away for the week-end, be said to be travelling from his employment, although a man who stays away for a night or two has not necessarily changed his abode. But in the present case the appellant's excursion involved no alteration, even temporarily, of his place of abode and his position as a living-in employee. He was not, in my view, travelling from his employment when he was injured. The appeal should, I consider, be dismissed. (at p214)

ORDER

Appeal dismissed with costs.