|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
High Court of Australia |
KAVANAGH v. THE COMMONWEALTH [1960] HCA 25; (1960) 103 CLR 547
Workers' Compensation
High Court of Australia
Dixon C.J.(1), Fullagar(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Workers' Compensation - Commonwealth employees - "Injury by accident" - Arising "in the course of his employment" - Solely temporal relation between injury and employment - Casual connexion between injury and employment unnecessary - Commonwealth Employees' Compensation Act 1930-1956 (Cth), s. 9 (1).
HEARING
Melbourne, 1959, Ocotober 19, 20, 21;DECISION
1960, May 19.2. Section 9 (1) of the Act provides that if personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to the Act, be liable to pay compensation in accordance with a schedule. The word "injury" is defined to mean any physical or mental injury and to include the aggravation, acceleration or recurrence of a pre-existing injury: s. 4 (1). The schedule provides for compensation where death results from the injury: first schedule, cl. (1) (a). (at p552)
3. Kavanagh died in hospital on 20th January 1958 of bronchopneumonia and heart failure supervening upon a rupture of the oesophagus which he had suffered during the hours of work at his place of employment on 14th January 1958. The rupture was caused by sudden vomiting, the cause of which could not be explained. It is not disputed that the death "resulted" from the rupture of the oesophagus within the meaning of the word "result" as used in the schedule. The question in contest is whether the rupture of the oesophagus was a personal injury by accident arising in the course of the employment. (at p552)
4. It appears that Kavanagh, who was about sixty-three years of age, was employed in the work of packing stationery at postal premises in Little Bourke Street. Work began at eight o'clock in the morning. On Monday, 13th January 1958, he had worked overtime and on his return home he had had a late meal. Next morning he left home at the usual time apparently in good health. He arrived ten minutes before the commencement of work, and seemed well enough to those with whom he talked. After about half an hour's work he left the floor to go to the convenience. When he returned he said he felt ill and had diarrhoea. Suddenly he vomited. He was taken home and on the journey he seemed to collapse. A doctor was summoned who arranged for Kavanagh to go to hospital where he was admitted after a little delay. It was there found that he had ruptured his gullet. An operation was performed at once to repair the rupture, but although this was done satisfactorily the condition of the patient deteriorated and six days later he died. (at p553)
5. According to the medical evidence rupture of the oesophagus by vomiting is a well recognized but very uncommon occurrence. It is explained in the following passage from the evidence of the surgeon: "It is a mechanical problem of the contents of the stomach being forced violently into the gullet or the oesophagus, as it were, with the oesophagus being unready for it and not relaxing smoothly ahead of the oncoming vomitus, so pressure is built up and splits the oesophagus open". The cause of the deceased's vomiting was not ascertainable. (at p553)
6. The first question is whether the rupture of the gullet in these circumstances is to be considered an injury by accident. In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection: Clover Clayton & Co. Ltd. v. Hughes (1910) AC 242 , per Lord Loreburn L.C. (1910) AC, at p 246 , per Lord Macnaghten (1910) AC, at p 249 , per Lord Collins (1910) AC, at pp 255, 256 ; McArdle v. Swansea Harbour Trust (1915) 113 LT 677 ; Flanagan v. Ackers Whitby & Co. (1926) 19 BWCC 399 . (at p553)
7. But this is not the real difficulty in the case. The real difficulty lies in the question whether the accident consisting in the rupture of the gullet arose in the course of the employment. Clearly it occurred during hours of work and at a point of time when Kavanagh, having desisted from his actual task to go to the convenience, had returned and was apparently undecided whether he could resume the performance of his work or was unfit to do so. The expression "course of the employment" in the law of workmen's compensation covers an incident such as that of the employee's retiring in obedience to a call of nature and of momentarily standing by considering his capacity to resume his duties. In one sense of the word "in" therefore the injury by accident occurred "in the course of the employment". But there was no connexion, or at all events no known connexion, between the employment and the fit of vomiting or the failure of the gullet to relax or expand to discharge the vomitus. It might have occurred just as well at any other time, at any other place and in any other immediate external conditions. (at p554)
8. The contention for the respondent is that a personal injury though accidental, which is thus unconnected with the employment, cannot be an injury arising in the course of the employment by reason of its occurring while the employee is performing his duties or doing something incidental to the actual performance of his duties. His Honour Judge Mulvany, from whose decision in the County Court the appeal comes, acted upon that view which he regarded as expressed in the judgment of this Court composed of Fullagar and Taylor JJ. and myself in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 . That was a case in which, according to the claim or contention made by a serviceman, a valvular regurgitation or "leak" of the heart had developed during his period of service as the natural progressive consequence of an attack of rheumatic fever he had suffered in childhood: his service had not aggravated or contributed to the progress of the condition. The Court denied that the facts disclosed any injury by accident arising in the course of the employment of the serviceman. In the reasons for judgment an important passage occurs which the learned judge referred to as necessitating his Honour's conclusion. Speaking of James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 , the Court said: "But the decision does not justify acceptance of the same view in cases where it must be established that the so-called injury by accident arose in the course of the worker's employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment" (1958) 99 CLR, at pp 223, 224 . I do not think that this passage can, with legal correctnes, be pressed beyond a physiological change which is produced by the development of a progressive disease. In such a case if the physiological change can be attributed to an incident of the employment or can be associated therewith, that is as having some causal relation, then it may be possible to regard it as an injury by accident where otherwise it could be treated as "nothing more than the sole and inevitable result of the ravages of a disease" (1958) 99 CLR, at p 224 . It would not appear to me to be correct in point of law to apply the passage to such a case as the present where you have what is clearly enough an injury by accident though not occasioned by any external force or agency. I say this because I do not think that it is consistent with s. 9 (1) as it now stands to deny that an event or state of affairs which in truth amounts to an injury by accident did not arise in the course of the employment because its occurrence cannot be attributed to or associated with the "employment", including in that word the nature of the employment, its incidents and all that the employee may do or refrain from doing in pursuance or in consequence thereof. (at p555)
9. When the Commonwealth Employees' Compensation Act 1930 was enacted s. 9 (1) took the form of its English prototype and provided that if personal injury by accident arising out of and in the course of his employment is caused to an employee of the Commonwealth the Commonwealth shall . . . be liable to pay compensation . . . . An unimportant amendment was made by Act No. 8 of 1944, but by s. 4 of Act No. 61 of 1948 the provision was replaced. In the substituted provision the double condition expressed by the words "arising out of and in the course of the employment" was changed to the alternative conditions expressed by the words "arising out of or in the course of the employment". A similar change had, of course, been made in certain State Workers' Compensation Acts. Possibly if the history of the provision were unknown or the provision had been enacted for the first time in its present form as an original piece of legislation attempts might have been made to read the words "or in the course of the employment" as epexegetical or explanatory in some way. But it is impossible to disregard the course of legislation. Few, if any, expressions had received so much judicial consideration and in so many jurisdictions as had the words "personal injury by accident arising out of and in the course of the employment". Repeatedly the contrast had been made between the effect of the words "out of" and the effect of the words "in the course of". Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connexion between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition. I have seen nothing to suggest that within the expression "in the course of the employment" there had been discovered any element of causal relation with the employment and its incidents. To prescribe that element was considered to be the work of the words "arising out of". It was thus natural for this Court to say after the word "or" had been substituted for "and" in the Western Australian provision that the result of English authority was "to show that the words 'arising in the course of the employment' describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service". That was said in Pearson v. Fremantle Harbour Trust [1929] HCA 19; (1929) 42 CLR 320, at pp 329, 330 , where there is some citation of authority. It is perhaps unwise to substitute any expression as an equivalent for the well-known words "in the course of" which had a long history in the law before they were taken up by the English Workmen's Compensation Act 1897. They are to be seen as early as 1687 in the head note to Turberville v. Stampe [1792] EngR 145; (1687) 1 Ld Raym 264 (91 ER 1072) , where it is said: "A master is responsible for all acts done by his servant in the course of his employment, though without particular directions". Familiar as they became in describing the limitation upon the wrongful acts of the servant for which the master is liable to others, they necessarily received a new and enlarged application when used to describe a limitation upon the injuries sustained by the servant for which a liability to the servant was imposed by statute upon the master. For it is one thing to use words as a description of the occasion when acts or omissions of the servants should render the master liable to strangers, and it is quite another thing to apply them to limit the occasion when the injuries suffered by the employee should be compensated by the employer. Almost inevitably the latter use invites an enlargement of the notion of employment to include the incidents of the employment and the question whether an injury is suffered in the course of the employment can hardly be governed by the same considerations as the question whether one has been inflicted in the course of the employment. But throughout the long history of the expression it seems to have been understood as directed to the scope of the operations authorized or allowed or growing out of the employment and not to any causal relation otherwise with the employment. I am of course fully alive to the fact that no direct immediate decisive positive or dominant causal connexion between the employment and the injury or accident is proposed as an element necessary to satisfy the conception of an injury by accident arising in the course of the employment but only an association which may perhaps be best expressed by saying that had it not been for the employment the injury by accident would not or might not have been sustained, or negatively by saying that the injury by accident must not be one which occurred independently of the employment and its incidents. It is not a conception which it is altogether easy to apprehend and it may be doubted whether in practice it could easily be applied. However, it may be said it would contradict past experience if that were treated as a valid objection to a conception which may be yielded by a provision of a workmen's compensation statute and in particular of the statute under present consideration. (at p557)
10. But for myself I think that the words "arising in the course of the employment" do not connote or imply even so slender a causal connexion. It is possible that those who substituted "or" for "and" were not alive to the consequences of the change and in particular to the manner in which the alternative "or in the course of the employment" might operate to compensate sufferers from injuries unconnected with industry if and only if the injuries occurred during working hours. All that can be said as to this is to cite Lord Buckmaster's statement in St. Helen's Colliery Co. v. Hewitson (1924) AC 59 with reference to the cumulative phrase: "It is useless to lament the obscurity of these words and wrong to inquire what was the intention behind the Act except so far as such intention is disclosed in the language of the statute construed in accordance with certain fixed and well-known principles" (1924) AC, at p 65 . (at p557)
11. In my opinion the appeal should be allowed with costs and the cause remitted to the County Court at Melbourne to assess or give directions for the assessment of compensation. (at p557)
FULLAGAR J. In this case the appellant is, in my opinion, entitled to succeed. (at p558)
2. It is not, I think, open to serious question that the rupture of the oesophagus, which led to the death of the appellant's husband, was a "personal injury by accident" within the meaning of s. 9 of the Commonwealth Act. That this is so must be taken to have been established by the early decisions of the House of Lords in Fenton v. J. Thorley & Co. Ltd. (1903) AC 443 and Clover Clayton & Co. Ltd. v. Hughes (1910) AC 242 , and those decisions have been followed and applied in many cases. (at p558)
3. The question which thus appears as the real question in the case is whether Kavanagh's injury "arose in the course of his employment" within the meaning of those words in s. 9. (at p558)
4. I agree with Menzies J. in thinking that, in considering the meaning of those words, it is of the first importance - I think myself that it is of decisive importance - to remember that s. 9, as it stood in the original Commonwealth Act of 1930, gave a right to compensation only in respect of injuries which "arose out of and in the course of the employment", and that in 1948 the legislature substituted the conjunction "or" for the conjunction "and", so that the two conditions which had been cumulative became alternative. The State Acts have had a similar history in this respect. (at p558)
5. While the legislation stood in its original form, it was clear that the words "out of" imported the necessity of a causal connexion between the injury and the employment or some incident of the employment, and the words "in the course of" tended (perhaps naturally) to assume a minor importance. At any rate, although they are referred to often enough in English and Australian cases on Acts which made the two conditions cumulative, one finds little or nothing that is positively helpful when one is forced to treat those words as expressing an independent condition of the right to compensation. (at p558)
6. But what does emerge from a consideration of the cases is, I think, the significant fact that the effect of requiring a causal connexion between employment and injury is always attributed to the words "out of" and not to the words "in the course of". (The words "out of" do indeed import causation: the words "in the course of" do not.) The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment. And it necessarily follows, I think, that the words "arising in the course of his employment" ought not to be regarded as meaning anything more or less than "arising while the worker is engaged in his employment". For I can find no tenable half-way house between this view and the view that the words in question have the same meaning as the words "arising out of his employment". (at p559)
7. I do not think that the judgment of the Chief Justice, Taylor J. and myself in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 is at variance with the view expressed above. If that judgment did contain anything inconsistent with what I have written, I do not think that I should feel bound to adhere to it, for it is obvious that the decision itself has no bearing on the present case. But, if the judgment is read in the light of the facts of the case, I do not think that there is any such inconsistency. There is a passage in the judgment which denies that "all accidental injuries sustained by a worker at his place of employment must, by virtue of that fact alone, be taken to be sustained 'in the course of his employment'" (1958) 99 CLR, at p 222 . But this seems to be at once obviously correct and obviously irrelevant to the present case. Whether the injury is sustained at the place of employment or elsewhere, it is not sustained "in the course of employment" unless it is sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work. (at p559)
8. But the respondent relied mainly, I think, on the last sentence in a passage which it is desirable to quote in full. The Court, after referring to Sharpe's Case (1955) AC 1 , said: "But the decision does not justify acceptance of the same view in cases where it must be established that the so-called injury by accident arose in the course of the worker's employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may perhaps be said, in the course of the disease" (1958) 99 CLR, at pp 223, 224 . (at p559)
9. The last sentence in the passage quoted is perhaps capable of misleading, but I do not think it should be read as meaning or implying that an accident does not occur in the course of an employment unless some causal connexion can be found between employment and accident. The Court was dealing in Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 with a special class of case - the case where death or incapacity results from a "physiological change" such as a coronary occlusion, which was a development or culmination of an antecedent morbid condition in the body of the worker. The true position in such cases is that compensation cannot, in the absence of some special provisions such as those considered in Sharpe's Case (1955) AC 1 be recovered unless the "physiological change" was associated with some episode or incident in the worker's employment - such as lifting a heavy weight or hurrying up a steep slope. It is therefore literally true to say that, in the absence of any such episode or incident, the worker fails to establish "personal injury by accident arising in the course of his employment". But the real truth in such a case is expressed not by saying that the worker has suffered personal injury by accident outside the course of his employment, but by saying that the worker has not suffered personal injury by accident at all. It is not incorrect to say, in the absence of any material episode or incident of the employment, that the "physiological change" occurred outside the course of the employment, but it is incorrect to say that what happened is placed outside the course of employment by the absence of any causal connexion between what happened and the employment. I do not think that any real support for this latter proposition is to be found in Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 . In other words, Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 is to be regarded as a decision on the words "personal injury by accident", and not as a decision on the words "arising in the course of his employment". (at p560)
10. The appeal should, in my opinion, be allowed. (at p560)
TAYLOR J. In January 1958 the appellant's husband, Hubert Francis Kavanagh, was employed as a storeman at premises of the Postmaster-General in Little Bourke Street, Melbourne. On 14th January he came to work in the usual way and at that time he appeared to be in good health. But shortly after commencing work about 8 a.m. he began to feel ill and, apparently, went to the toilet provided on the premises. A few minutes later one of his workmates, having learnt of his indisposition, went to see how he was; he met the deceased on his way back and in reply to his inquiry the deceased said that he was "not feeling the best" and almost immediately after he had made this observation, he vomited. Shortly after he was taken home and thence to hospital where it was found that his oesophagus was ruptured. An operation to repair the damage was undertaken, but he died on 20th January from broncho-pneumonia and heart failure. The probable explanation for the vomiting was that provided by the deceased himself at the hospital where he said that he had had an attack of diarrhoea. There seems to be no dispute that the rupture of the oesophagus was caused by the vomiting and it is established by the evidence that the supervening bronchopneumonia and heart failure were natural sequelae of the injury which he had sustained. Accordingly, there is no reason to doubt that his death resulted from that injury. At all events this was the conclusion of the learned County Court judge to whom an appeal was brought from a determination of the Delegate of the Commissioner who had disallowed a claim by the appellant for compensation pursuant to the Commonwealth Employees' Compensation Act 1930-1956. The appeal was unsuccessful and this further appeal is now brought to this Court. (at p561)
2. Accepting as a fact that the death of the deceased resulted from the rupture of his oesophagus the critical question is whether "personal injury by accident arising out of or in the course of his employment by the Commonwealth" was caused to him and this question arises for decision in a case where, according to the evidence, no incident or circumstance even remotely related to his employment, or to his place of employment, had any connexion or association with his injury. Upon this view of the facts the learned County Court judge believed the case to be concluded by observations made by this Court in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 , and he dismissed the appeal to him. But in Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 the Court was dealing with facts which showed that the applicant had for a long time suffered from a progressive heart disease; it was not dealing with a plain case of personal injury by accident recognizable as such. It was thought proper in those circumstances to point out that the decision of the Judicial Committee in James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 - a case strongly relied upon by the appellant but decided under the very special provisions of the Victorian Workers' Comensation Act - had no application to cases of the same character arising under the Commonwealth Employees' Compensation Act. It is unnecessary to repeat what was then said except to say that the Commonwealth Act does not contain any provision analogous to s.5 (5) of the Victorian Act as it then stood and that liability to pay compensation does not arise unless it be shown that personal injury by accident arising out of or in the course of his employment has been caused to an employee. This being so, it was said - speaking of physiological changes in the course of a progressive disease - "In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease" (1958) 99 CLR, at pp 223, 224 . (Cf. The Commonwealth of Australia v. Butler (1959) 102 CLR 465 ; Australian Iron & Steel Ltd. v. Connell [1959] HCA 54; (1959) 102 CLR 522 ; Darling Island Stevedoring & Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 ; and Sharpe's Case (1955) AC, at pp 12-15 ). But there is a clear distinction between Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 and the present case. Here the medical evidence makes it clear that the rupture of the deceased's oesophagus constituted personal injury by accident and the only question for our decision is whether the conditions specified by the section are otherwise satisfied. (at p562)
3. The appellant's contention on the appeal was that in the circumstances related the personal injury which caused the deceased's death was a personal injury by accident arising in the course of his employment. There is no suggestion that it arose out of the employment. In support of this contention it was asserted that once personal injury by accident is established it is sufficient, for the purpose of the section, if it merely be shown that there was a temporal relationship between the injury and the employment of the worker. By this I understand the appellant to mean that any personal injury by accident is within the section if it be shown to have been sustained by an employee during the time when he is on duty at his place of employment. This proposition asserts that the critical inquiry is whether at the time when the injury was sustained the worker can be said to have been in the course of his employment. Accordingly it denies the necessity for any examination of the attendant circumstances for the purpose of seeing whether the accidental injury itself can, or cannot, be said to have occurred in the course of the employment. That is to say, whether the accidental injury bears any relationship whatever to the duties which the employee is required to perform or to the place where he is required to perform them. It is, of course, the extremely unusual character of the circumstances which provokes the attempt to draw a distinction between these two notions for in the normal case of injury by accident an affirmative answer to the first of these inquiries would determine the answer to the second. If, in the course of performing work which he is employed to do, a worker sustains a personal injury by accident, there will usually be found sufficient association, between the duties of the employment, or the place of employment, and the injury to make it clear that it answers the description of a personal injury by accident arising in the course of the employment. (at p563)
4. The appellant, however, contends that there is ample authority to compel the conclusion that a mere temporal relationship between the employment and the injury is, alone, sufficient to satisfy the section and, indeed, observations with this literal significance have been made from time to time. For instance, in Dover Navigation Co. Ltd. v. Isabella Craig (1940) AC 190 , Lord Wright said: "Nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality" (1940) AC, at p 199 . But his Lordship went on to add: "Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define" (1940) AC, at p, 199 . Commenting on this observation in Ockenden's Case (1958) 99 CLR 215 this Court said: "But it cannot be thought that his Lordship intended to suggest in the earlier part of this passage that all accidental injuries sustained by a worker at his place of employment must, by virtue of that fact alone, be taken to be sustained 'in the course of his employment'" (1958) 99 CLR, at p 222 . It should, of course, be borne in mind that in the Dover Navigation Co.'s Case (1940) AC 190 the House of Lords was dealing with a statute which provided compensation for injuries by accident arising out of and in the course of a workman's employment and the facts of the case were such that, if they established that the deceased's death had resulted from an accidental injury which had arisen out of his employment, there could have been no doubt that it had also arisen in the course of his employment. And the like observation may also be made concerning the many English cases to which we were referred and which may be thought to treat that part of the composite expression which refers to the course of the employment as denoting a temporal relationship only. For when one is concerned to see whether an accidental injury sustained by a workman whilst on duty has arisen out of his employment it is a simple matter, if that question be answered affirmatively, to say that, because he was on duty at the time, it also arose in the course of his employment. But this does not mean that if the inquiry be limited to the question whether a particular accidental injury has arisen in the course of a workman's employment the only matter for consideration, whatever the character or circumstance of the injury, is whether he sustained it whilst he was on duty. Certainly it does not if, as Lord Wright said earlier in the Dover Navigation Co.'s Case (1940) AC 190, that legislation such as the Commonwealth Employees' Compensation Act, "is a practical measure expressed in non-technical language, to be construed according to the ordinary sense of mankind" (1940) AC, at p 199 (at p564)
5. However by no means all of those who have attempted to explain the expression "in the course of the employment" have assigned a merely temporal denotation to it. In fact, the general tendency has been to identify the course of the employment with the performance of the duties of the employment or other activities incidental to it. Speaking of the expression "out of and in the course of the employment" Buckley L.J. said in Fitzgerald v. W. G. Clarke & Son (1908) 2 KB 796: "The words 'out of' point, I think, to the origin or cause of the accident; the words 'in the course of' to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place" (1908) 2 KB, at p 799 Then in Charles R. Davidson & Co. v. McRobb or Officer (1918) AC 304, Lord Finlay, speaking of the facts of that case, said: "In my opinion the accident arose in the course of the employment in the present case substantially for the reasons which I have given when discussing the question whether it arose out of the employment. The deceased returned to his employment when he entered the harbour gates through which he got access only by reason of his employment. The word 'employment' must mean the same thing when in apposition with 'in the course of' as it means when in apposition with 'out of'. 'Arising out of the employment' obviously means arising out of the work which the man is employed to do and what is incident to it - in other words, out of his service. 'In the course of the employment' must mean, similarly, in the course of the work which the man is employed to do, and what is incident to it - in other words, in the course of his service" (1918) AC at p 314 These observations are taken from a dissenting judgment but Lord Finlay's dissent resulted, not from any disagreement as to the meaning of the critical expression, but only from his disagreement as to how far the facts of the case supported the claim. That this was so is evidenced from a number of observations in the later case of Armstrong Whitworth and Co. Ltd. v. Redford (1920) AC 757 . There again Lord Finlay was a dissentient but he expressly referred to the fact that the expression "by accident arising out of and in the course of the employment" had been very fully considered by the House of Lords in the earlier case. He said: "The conclusion arrived at in that case is thus stated in the headnote in the Law Reports: 'In the course of the employment' does not mean during the currency of the engagement, but means in the course of the work which the workman is employed to do and what is incident to it; and absence on leave for the workman's own purposes is an interruption of the employment" (1920) AC, at p 762 . This, he said, expressed the considered opinion of four out of the five peers present at the hearing. The same view is implicit in what Lord Sumner said whilst Lord Parmoor expressly treated the earlier case as deciding that: "'In the course of employment' does not mean during the currency of the engagement, but means in the course of the work which the workman is employed to do and what is incident to it" (1920) AC, at p 778 . In our own Court Dixon J., as he then was, pointed out in Whittingham v. Commissioner of Railways (W.A.) [1931] HCA 49; (1931) 46 CLR 22 that although it had been said that in Charles R. Davidson & Co. v. McRobb or Officer (1918) AC, 304 a decision was given upon the words "in the course of the employment" which was final, its application had not proved simple. But he said there could no longer be any doubt that the accident must happen "while the employee is doing something which is part of or is incidental to his service" (1931) 46 CLR, at p 29 . In South Maitland Railways Pty. Ltd. v. James [1943] HCA 5; (1943) 67 CLR 496 , the question was whether the applicant's husband, who had been fatally shot during a discussion with a fellow-employee at his place of employment during working hours, had sustained an injury by accident in the course of his employment. The award had been upheld in the Supreme Court on the ground that it was open to the Commission to come to the conclusion that James (the deceased) was killed "whilst he was doing something sufficiently incidental to the work which he was employed to do to make the injury occur in the course of his employment". Latham C.J. pointed out that the deceased "met his death whilst he was on duty at his place of employment during working hours, at the hands of a fellow-employee, and whilst he was endeavouring to investigate disparaging remarks about his capacity to do certain of the work which he had been employed to do" (1943) 67 CLR, at p 499 . The question whether his injury had been sustained in the course of his employment was, his Honour said, one of fact and degree and he then said: "In order to justify a court in coming to the conclusion that an injury arose in the course of an employment, it is not enough to show that the injury had something to do with the employment, or that if it had not been for the fact that the worker was employed by the particular employer in question he would not have received the injury. An injury arises in the course of a worker's employment only when it arises when the workman is doing something 'which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work' . . ." (1943) 67 CLR, at p 500 . For this proposition his Honour cited Charles R. Davidson & Co. v. McRobb or Officer (1918) AC 304 . According to Starke J.: "The words 'out of' require that the injury had its origin in the employment, whilst the words 'in the course of' are not equivalent to 'during'; the injury must occur in the course of the employment, that is, whilst the worker is doing something which is part of his service to his employer or master or incidental to the employment, or, in other words, whether the workman was at the time of the injury about his own business or that of his master" (1943) 67 CLR, at p 502 . Upon the facts of the case before the Court Starke J. held that, although it would not be in the course of a worker's employment for him to discuss his private affairs or ventilate a private quarrel in his employer's time it was in the circumstances of the case open to the Commission to hold that the injury arose in the course of the work which the deceased was employed to do. Much the same view has been taken by the Supreme Court of New South Wales in a number of cases and it is sufficient, perhaps, to mention the recent case of Richards v. Lithgow Valley Co. Ltd. (1959) 77 WN (NSW) 28 , where a number of the cases already mentioned were referred to, and the earlier cases of Davidson v. Mould [1944] HCA 10; (1943) 44 SR (NSW) 113; 61 WN 117; [1944] HCA 10; (1944) 69 CLR 96 and Pickering v. T. H. Muldoon & Co. (1955) 55 SR (NSW) 271; 72 WN 325 . (at p566)
6. The last three mentioned cases were concerned with accidental injuries sustained during breaks in the actual employment and in cases of that character it has, for obvious reasons, been necessary to give particular attention to the circumstances in which the accidental injury has been sustained. But to attempt to reconcile what was called in Richards v. Lithgow Valley Co. Ltd. (1959) 77 WN (NSW) 28 , "the forest of single instances to be found in the cases both for and against the application of the phrase" (i.e. "in the course of the employment") (1959) 77 WN (NSW), at p 30 is profitless for the question must always be one of fact and degree. But what is clear is that, with the exception of South Maitland Railways Pty. Ltd. v. James [1943] HCA 5; (1943) 67 CLR 496 , in all of the cases to which we were referred an association between the accidental injury and the contemporaneous activity of the employee was apparent; the only question was whether the activity itself was part of the duties of the employment or something which the employee was "reasonably required, expected or authorized to do in order to carry out his duties" (per Dixon J., as he then was, in Humphrey Earl Ltd. v. Speechley (1951) 84 CLR 126, at p 133 ). Further, in James' Case [1943] HCA 5; (1943) 67 CLR 496 , where the employee had been fatally shot during working hours upon his employer's premises, the claim succeeded only because it was thought to have been open to the Workers' Compensation Commission to find that the conversation in which he had engaged and which had led to the shooting was reasonably incidental to his employment. (at p567)
7. As will be seen from an examination of the cases to which we were referred every one was concerned with an injury associated with, though not necessarily caused by, some external incident and the incident, in turn, was associated with the duties which the employee was required to perform or with an activity thought to be incidental to his employment. None of them was concerned with or has anything to say with respect to accidental injuries which are not even remotely associated with the duties of the employment or incidental activities, or with the place of employment. Indeed none of the observations in the cases to which we were referred was made with any such contingency in mind. They are not, as I understand them, authority for the proposition that the sudden and unexpected physiological change produced by a miscarriage suffered by a female employee, and unassociated, except in point of time, with the duties or incidents of her employment, would constitute an injury by accident in the course of her employment. Nor, I should think, would compensation be held to be recoverable under the section, if in a fit of vomiting induced solely by an earlier overindulgence in intoxicating liquor, an employee sustained, with fatal results a like injury to that which the deceased in this case sustained. Perhaps one further illustration may be given. No doubt the epileptic fit suffered by the workman in Wilson v. Chatterton (1946) 1 KB 360 evidenced a sudden and unexpected physiological change and was, therefore, an injury by accident. But compensation was held to be payable not in respect of this injury but in respect of his accidental drowning. Let it be supposed, however, that instead of falling into a furrow full of water he had fallen harmlessly to the ground and had then died as the result of his seizure. Could it, in those circumstances, be said that his death had resulted from an accidental injury arising in the course of his employment? I think not. Nor would such a conclusion be open under the Act now in question for, notwithstanding the disjunctive form in which the critical expression stands in that Act, it is still true, in the language of Scott L.J., that "The general purpose of the legislation was, beyond all doubt, to put upon the employer an obligation to pay to his workman or the workman's representatives compensation for the result of personal injuries incidental to his employment" (1946) 1 KB, at p 366 . (at p568)
8. The current view of what constitutes injury by accident makes it possible to give many illustrations of a like character and, in my opinion, it would be quite impossible to class them as injuries by accident in the course of a worker's employment. Nor would it, in my view, be proper to regard the observations made in earlier cases concerning accidental injuries of a much more specific character as concluding the question in this case. It is, I think, not out of place to return to the observations of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig (1940) AC 190 , where, after the passages which I have previously cited, he said: "I do not know that attempts to amplify the language or define the dividing line" (between "out of" and "in the course of") "have been very illuminating, though help in deciding any particular problem may be obtained by examining actual reported cases, not generally as laying down principles of law but as showing how in particular circumstances of fact the dividing line has been drawn" (1940) AC, at p 199 . But the earlier cases do not throw much light, if any, on the present case; they do not envisage such an occurrence as that with which we are concerned; they do not draw any appropriate dividing line and they do not, by any means, require us to hold that the injury from which the death of the deceased resulted arose in the course of his employment. That being so, I feel free to ask myself whether the facts of the case are capable of supporting the claim that the deceased's injury so arose. That is to say, did he sustain his injury in the course of performing the work which he was employed to do or in the course of doing something incidental to that work? To my mind it is clear that he did not, for the occurrence had not the remotest connexion or association either with the work which he was called upon to do or with any activity incidental to that work, or with the place where he was employed or with any other employment factor. That being so it is, I think, impossible to say that the deceased's injury arose in the course of his employment. (at p569)
MENZIES J. The important question which this appeal raises squarely is whether when a Commonwealth employee suffers injury by accident while working, the Commonwealth is liable to pay compensation, notwithstanding that the employee's work had nothing whatever to do with the injury. Here the deceased, who was employed in the Postmaster-General's Department, began work at the Stores Branch, Little Bourke Street, Melbourne, at about 8 o'clock in the morning of 13th January 1958 in apparent good health; at about 8.30 a.m. from an unascertained cause he vomited with the unusual consequence that he ruptured his oesophagus. He died six days later. The learned County Court judge found there was no incident in the employment of the deceased which could in any way be associated with the rupture which eventually brought about his death. (at p569)
2. There is no doubt that the rupture was personal injury by accident; it is clear that the rupture was not shown to have arisen out of the deceased's employment with the Commonwealth; if, therefore, the widow is to recover compensation it must be on the footing that "personal injury by accident arising . . . in the course of his employment" was caused to the deceased. (at p569)
3. Judge Mulvany treated the case as completely covered by The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 . Before us, it was argued that Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 is distinguishable, that what was said there does not apply here, but if it does and if what was said there would prevent the appeal from succeeding, those statements should not be accepted as correct. The authorities have been exhaustively examined by both sides and I have decided, in the first instance, to consider this case independently of Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 . (at p569)
4. The starting point is s. 9 of the Commonwealth Employees' Compensation Act 1930-1956. This section, which is in common form, was amended in 1948 by substituting "or" for "and" between the phrases "arising out of" and "in the course of" so that thereafter to impose liability on the Commonwealth, only one of these elements had to be proved instead of both as formerly. The words "is caused" do not themselves require any causal connexion between the personal injury and the employment. The contention that in a similar context the words "is caused" in the Workers' Compensation Acts (Vict.) imported such a connexion was rejected by the Privy Council in James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 because it was determined that the auricular fibrillation which resulted in Sharpe's death, being due solely to the onset or progress of a disease within his body without anything external to him playing any part, was nevertheless injury "caused" to the worker. This appears from the argument (1955) AC, at p 6 and the judgment (1955) AC, at p 12 . In the same way the word "arising" cannot be regarded as of itself importing anything of a causal relationship when used with the phrase "in the course of". Used in connexion with this phrase, the words "arising" and "is caused" do not seem to mean any more than "happening" so that the section subjects the Commonwealth to liability for injury upon any accident happening to an employee in the course of his employment. The question is then whether injury by accident, of which no more can be said than that it just happened to an employee while he was working, is injury "arising . . . in the course of his employment" for the purposes of the section. (at p570)
5. I shall not attempt to define the phrase "arising in the course of his employment" but would observe that if it does cover the whole of the time when a worker is working without the need for any other connexion with the employment, it is certainly not confined to this because it is well established that it can cover a case where injury occurs when a worker is off duty. The cases which establish this extension, and there are many of them, are important because they show that an injury may arise in the course of a man's employment when the connexion between the injury and the employment might be thought to be something other than temporal. If it were to appear as a causal relationship that would no doubt afford some support for the argument that the words "in the course of" do involve a relationship of that character. If on the other hand these decisions treat the time of working as extended to cover doing things incidental to work, they show that there is nothing more in the concept than time measured by activity of a particular character. What then is the element that brings an injury which happens outside working hours within the phrase "in the course of" the employment? (at p570)
6. The first case I propose to refer to is Armstrong, Whitworth & Co. Ltd. v. Redford (1920) AC 757 . The question there was whether an employee was injured in the course of her employment when, during the dinner hour, which was her own time, and on her way back to work after a meal, she fell on some slippery stairs leading from a canteen provided by her employers. The canteen was within the same curtilage as the works but, because a connecting door was locked, access from the canteen to the works could at the relevant time be had only by going into the street. What was regarded as conclusive was that the arbitrator might find that the stairs were part of the premises where the respondent was employed. Lord Sumner said: "The respondent was returning from the place where she had dined, down the stairs provided for her return, the use of which exposed her to a risk to which members of the public were not exposed just because they had no right to be there, not being the appellants' employees, for the purpose of regaining the place where she worked via the place where she 'clocked on'. It is a question of fact for the arbitrator to determine where the area begins over which it is an incident of her employment to go, an 'incident naturally connected with the class of work she had to do,' and which, in fact, she was just going to do." (1920) AC, at pp 775, 776 . The employee was, it seems, treated as though she was at work. (at p571)
7. A series of cases in this Court show that the words "arising . . . in the course of his employment" are satisfied if the injury occurs when the worker is doing something incidental to his service; Pearson v. Fremantle Harbour Trust [1929] HCA 19; (1929) 42 CLR 320 , getting hot water for tea; Henderson v. Commissioner of Railways (W.A.) [1937] HCA 67; (1937) 58 CLR 281 , crossing a railway line on the way from work to a camp during the lunch hour; Davidson v. Mould [1944] HCA 10; (1944) 69 CLR 96 , taking the crown seal off a bottle of Coca-Cola during lunch. In the last case, it was what the worker was doing as an incident of his employment that caused his injury; in the other two cases the injury was caused by the action of someone else whilst the worker was doing something incidental to his employment; the common element is that the worker was doing what he was doing and was where he was when injured, as an incident of his employment. A case on the other side of the line is Whittingham v. Commissioner of Railways (W.A.) [1931] HCA 49; [1931] HCA 49; (1931) 46 CLR 22 , where it was held that a worker who was hit by a cricket ball while strolling at lunch time upon a recreation ground attached to the workshop where he worked did not suffer an injury which arose in the course of his employment because the worker was strolling around for his own pleasure and not as part of his service. It was emphasized that the injured employee was not employed at the place where he was injured. Dixon J. said: "His presence somewhere at or near the premises at that time may be said to be a consequence of or at least to arise out of his employment. But all that can be said of his presence in the yard at the place where he was struck is that, if he had not been an employee, he would have probably been elsewhere. So much could be said if he had been struck in passing a cricket field half a mile away on his way to work. In fact his presence there contributed nothing towards and was in no way involved in the performance of his duties" (1931) 46 CLR, at p 31 . (at p572)
8. My review of these cases leads to the conclusion that if a worker is injured while doing something incidental to what he was employed to do, that is sufficient and no other association between the injury and his work is necessary; he is to be in the same position as if the injury arose while he was doing what he was employed to do. So far then from these cases indicating any causal element covered by the phrase "in the course of", they seem to me to accept a temporal relationship as sufficient, and to extend the time from working time to the time of doing what is incidental to work. This clearly appears from what was said by Jordan C.J. in Davidson v. Mould (1943) 44 SR (NSW) 113; 61 WN 117 : "The initial question is whether it was open to the Commission on the evidence to find that the injury arose in the course of employment, that is to say, whether it was sustained whilst the worker was doing the work which he was employed to do or something incidental to it. If, when he sustained the injury, he was engaged in doing something which it was his duty to do under his contract of employment, the case is clear. But it does not follow that because he was not then so engaged it was not sustained in the course of employment. It is sufficient if it is shown that he was at the time doing something incidental to his employment" (1943) 44 SR (NSW), at p 115; 61 WN, at p 119 . (at p572)
9. The next case to which I want to refer is Hetherington v. Amalgamated Colleries of W.A. Ltd. [1939] HCA 36; (1939) 62 CLR 317 , because it was argued that the decision impliedly treated personal injury by accident in the course of an employment as, in the circumstances of that case, meaning something more than dying unexpectedly while on duty. It seems to me the real question there was whether there was personal injury by accident, the Full Court of the Supreme Court of Western Australia having decided that there was not. Once it was decided that the occlusion of the deceased's coronary artery which brought about his death was injury by accident, that was the end of the case because it was conceded that what happened arose in the course of the deceased's employment (see per Latham C.J. (1939) 62 CLR, at p 328 and per Evatt J. (1939) 62 CLR, at p 336 ) and it was not necessary to show that the injury also arose out of his employment. Nevertheless, because of an observation of the Full Court that "there was no real proof . . . that the occlusion of the coronary artery, which was the cause of his death, arose from the deceased's work at all" some attention was paid to whether or not the injury arose out of the deceased's employment. (See for instance per Dixon J. (1939) 62 CLR, at p 332 .) It is also true that the fact that the exertion of the day's work contributed to the occlusion occurring when it did, was treated as something supporting the conclusion that there was injury by accident, in the circumstances that the deceased was suffering from progressive heart disease and might have died at any time. (See per Latham C.J. (1); per Rich J. (1939) 62 CLR, at p 329 ; per Starke J. (1939) 62 CLR, at p 330 ; per Dixon J. (1939) 62 CLR, at p 335 ; and per Evatt J. (1939) 62 CLR, at p 336 .) In James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 , it was sought by counsel for the employer to carry what was said in these passages further and to draw from them that the Court thought that a sudden physiological change without an external event was not to be regarded as personal injury by accident. This was however rejected (1955) AC, at pp 19, 20 . Here, as I have said, there was a similar attempt to use Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 as an indication that a sudden physiological change at work, without more, is not injury arising in the course of the employment, but neither what was said about "personal injury by accident" nor what was said about "arising out of" the employment, which were the two matters discussed, warrants any inference about the meaning of the phrase "arising in the course of the employment". (at p573)
10. This brings me to the case of James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 itself upon which Mr. Eggleston relied greatly, and in which the Privy Council decided that the dependants of a worker who just died while going to work, were entitled to compensation under the Victorian Act. It is important to observe at the outset that their Lordships did not decide that death in such circumstances was in reality injury arising in the course of the worker's extended employment, because s. 5 provided that an injury by accident to a worker shall be deemed to arise out of or in the course of the employment if the accident occurs while the worker is travelling between his place of residence and his place of employment. The actual decision was that the death of the worker, as a result of auricular fibrillation in the progress of long-standing heart disease and without any external stimulus was injury by accident and that it was caused to the deceased within the meaning of s. 1 of the Act. In their Lordships' judgment, however, there are a number of observations that have a present significance. In the first place, it was recognized that until "or" was substituted for "and" it was necessary to prove that "some external event or some action of the deceased had caused the sudden physiological change to happen when it did" (1955) AC, at p 15 , and that at least the principal reason for this no longer being necessary was that substitution. The argument that the phrase "injury by accident" itself required some such association was rejected by their Lordships by reference to definitions of injury and disease in the Victorian Act, without positively deciding whether, independently of these definitions, the argument should be rejected. Furthermore, it was explained that in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1; 68 WN 34 their Lordships did not deal with the question whether disease not induced by an outside event could be injury by accident. Then the argument to which I have already referred based upon what was said in Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 was rejected in these words: "their Lordships cannot infer . . . that any of the judges had formed a definite opinion that a sudden physiological change by itself could not be injury by accident" (1955) AC, at p 19 . Their Lordships then took up the admission (based upon what Dixon J. said in Hetherington's Case (1939) 62 CLR 317 about "injury by accident") "that in Victoria it is now unnecessary to have an external event of accidental or unexpected character or an event connected with the man's work or, in a case to which s. 5 (1955) AC, at p 20 applies, connected with his journey" (1955) AC, at p 19 and said that, this being so, "it is very difficult to suppose that it could have been intended to retain the need to prove some external event in every case, and their Lordships would only be prepared to accept the appellant's contentions if the words used by the legislature compelled that conclusion" (1955) AC, at p 20 . Finally, their Lordships agreed with the decisions of the Full Court of the Supreme Court of Victoria in Sharpe's Case (1953) VLR 206 and Willis v. Moulded Products (Australia) Ltd. (1951) VLR 58 . It is to be observed that in these cases some of the judges did take the view that independently of the special definitions in the Victoria Act the rupture of an artery (Willis) and the auricular fibrillation (Sharpe) without external stimulus, constituted injury by accident. (at p574)
11. This judgment as a whole does, I think, reveal a tendency to treat as compensable an injury by accident occurring during what may be regarded as an extension of the worker's employment (see per Dixon J. in Hume Steel Ltd. v. Peart [1947] HCA 34; (1947) 75 CLR 242, at p 257 - cited with approval by the Judicial Committee in Slazengers' Case (1951) AC, at p 21; (1950) 51 SR (NSW), at p 5; 68 WN, at pp 36, 37 , notwithstanding that there is no connexion other than one of time measured by activity (viz. travelling) between the injury and what the worker was doing that is not to be explained merely by the definitions of "injury" and "disease" in the Victorian Act. If an injury so occurring is compensable, such an injury occurring while the worker is working would be compensable a fortiori unless the language of the Act shows clearly that the worker while travelling is to be in a more favoured position than the worker working: Slazengers' Case (1951) AC, at pp 21, 22; (1950) 51 SR (NSW), at p 5; 68 WN, at p 37 . My judgment to be delivered in Hornsby's Case [1960] HCA 27; (1960) 103 CLR 588 states why I think that if what happened to Kavanagh at work had happened to him while he was travelling to work he would have been entitled to compensation. (at p575)
12. Then there are a number of cases dealing with the composite phrase "arising out of and in the course of the employment" where it has been said that the words "arising out of" refer to causality and the words "arising in the course of" to time fixed by reference to the man's service. In Charles R. Davidson & Co. v. M'Robb or Officer (1918) AC 304 , Viscount Haldane said: "In order to come within the statute an accident must not only occur 'in the course of', that is to say during, actual employment, but in addition must arise 'out of' it. In other words, there is required to be shown something in the nature of a causal relation between the accident and an order, expressed or implied, given by the employer" (1918) AC, at p 317 . Lord Dunedin said: "In my view 'in the course of employment' is a different thing from 'during the period of employment'. It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master" (1918) AC, at p 321 . Lord Atkinson said: "In my view the words 'arising out of' suggest the idea of cause and effect. The words 'in the course of his employment' mean, I think, while the workman is doing something he is employed to do" (1918) AC, at p 327 . In Dover Navigation Co. Ltd. v. Isabella Craig (1940) AC 190 , Lord Wright said: "Nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality" (1940) AC, at p 199 . In Wilson v. Chatterton (1946) KB 360 , Scott L.J., speaking for the Court, said: "It is true that the words 'arising out of and in the course of the employment' impose two conditions precedent to the statutory obligation of the employer and that the words 'out of' introduce a factor which might seem to throw back the inquiry into causation one step further from the final effect than the words 'in the course of'. But so to read the condition is, in our opinion, to mis-read it. It is only if the accidental injury has no causal connexion with the employment at all that it can be said not to arise out of it, though it may occur in the course of it" (1946) KB, at p 366 . Buckley L.J., in Fitzgerald v. W. G. Clarke & Son (1908) 2 KB 796, at p 799 and in Craske v. Wigan (1909) 2 KB 635, at p 639 , said that the words "out of" point to the cause of the accident, the words "in the course of" to the time, place and circumstances under which the accident takes place. It is unnecessary to multiply instances, for it is abundantly clear that in the composite phrase the words "in the course of" were regarded as signifying no more than that the worker must be doing something that was part of or incidental to his service. This being so, it seems to me that when the conjunctive was dropped for the disjunctive, the result was to entitle the worker to compensation if no more is shown than that the personal injury by accident arose while he was doing something that was part of or incidental to his service. (at p576)
13. These various considerations have led me to the conclusion that, unless Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 . There are, I think, observations in the judgment which do indicate a contrary view to that which I have just expressed, but I have reached a conclusion that the decision itself does not govern this case. There the worker was incapacitated by the inevitable development of progressive heart disease and it was in such circumstances that it was said "that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease" (1958) 99 CLR, at pp 223, 224 , and "for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment" (1958) 99 CLR, at p 224 . The decision was therefore that unless there was such an association, there was not in that case sufficient to prove injury by accident so that it fell into the same category as Roberts v. Dorothea Slate Quarries Co. Ltd. (1948) 2 All ER 201 , where it was decided because incapacity due to silicosis was a result of a continuous process going on from day to day over a period of years and could not be said to be the result of an accident or a series of accidents each one of which was specific and ascertainable, that silicosis was not "injury by accident" within the meaning of the Act. I have already pointed out that in Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 the Court did regard the exertion of the deceased's day's work as contributing to the occlusion and as something going to support the conclusion that there was injury by accident. If there had been evidence of the same sort in Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 , the judgment shows that injury by accident might have been established. (at p577)
14. In these circumstances I do not think that anything that was said in Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 requires me to refrain from giving effect to the conclusion I have reached in this case. (at p577)
WINDEYER J. The unfortunate incident which led to the untimely death of the late Hubert Francis Kavanagh occurred while he was at work; but it had otherwise no connexion with his employment. A claim by his widow for compensation under the Commonwealth Employees' Compensation Act 1930 - 1956 was rejected; and an appeal to the County Court from that determination was dismissed. From the decision of the County Court this appeal is now brought. The immediate cause of death was said to have been broncho-pneumonia and heart failure; but it is not disputed that these were immediate consequences of the rupture of the oesophagus and that death thus resulted from the injury. Medical evidence established that a rupture of the oesophagus is known as a possible, but extremely uncommon, consequence of vomiting. The question is whether, in the words of s. 9 (1) of the Act, "personal injury by accident arising in the course of his employment by the Commonwealth was caused to" the deceased man. The rupture which was the unlikely and untoward result of vomiting caused by some sudden indisposition was, I have no doubt, an "injury by accident" in the sense that expression has in this branch of the law. It was quite unlike an episode that is an ordinary consequence of the progress of a disease, such as we have had to consider in other cases. It was not an accident arising out of the deceased's employment; but the Commonwealth Employees' Compensation Act, like some other Australian workers' compensation statues, is satisfied when injury by accident arises either out of or in the course of the employment. (at p578)
2. It was contended for the appellant that "in the course of his employment" means no more than while he was engaged in something he was employed to do or something incidental thereto. It is, however, striking that in several parts of Australia, among them New South Wales, an injured worker's right to compensation has for many years depended upon proof of an accident arising either out of or in the course of his employment; yet there is no decision that a merely temporal relation between the injury and the employment suffices. That, Herron J. observed in Pickering v. T. H. Muldoon & Co. (1955) 55 SR (NSW) 271, at p 281; 72 WN 325, at p 332 , has not yet been established. And, notwithstanding the argument by which it was sought to establish it in this case, it is not, I think, what the Act provides. (at p578)
3. To prefer the gloss to the text is an old and besetting temptation for lawyers, and, judging by many judicial protests, one much yielded to in this branch of the law. For example, Lord Loreburn said in 1917: "I should not have thought it possible that the process of perverting an Act of Parliament by divorcing judicial expressions from their context and from the subjecta materies could have been carried so far as it has been in some of the arguments I have heard on this statute": Dennis v. A. J. White and Co. (1917) AC 479, at p 490 . And Lord Shaw of Dunfermline said in 1924: "In these cases, my Lords, the authorities are legion; and the language of the statute is too apt to be submerged by them. It is the practice to cite over and over again large numbers of them and very often to do so in violation of the canon that, when cases depend upon fact, then a variation in fact deprives the alleged precedent of value. A few general principles may, however, emerge from this mass of authority, and, above all, the language of the statute must still be allowed to speak for itself": St. Helens Colliery Co. Ltd. v. Hewitson (1924) AC 59, at p 81 . These and similar warnings have even greater force when we are asked, in considering the Act before us and its application in the facts of this case, to consider judgments given in relation to different facts in cases arising under other Acts. "The question whether an injury arose out of or in the course of employment must", said Jordan C.J. in Davidson v. Mould (1943) 44 SR (NSW) 113; 61 WN 117 , "be determined as a matter of common sense, aided of course, by such general principles as have been laid down by the authorities, it being remembered always that it by no means follows that because a particular set of facts has been held to warrant or even to necessitate a particular conclusion, another set of facts which bears a considerable resemblance to the former calls for the same conclusion" (1943) 44 SR (NSW), at p 115; 61 WN at p 118 . (at p579)
4. Turning therefore to the language of the Act before seeking guidance from the authorities; the words "in the course of his employment" must be read in the context of the sentence in which they appear and as part of that sentence. Nevertheless, it is not unimportant to remember what the expression "in the course of" taken by itself ordinarily means. It does not necessarily have a purely temporal sense. It does so only when it is used in conjunction with a word that has a temporal meaning, or which is, in the context, used to limit or measure time, for example, in the course of the year or of a lifetime. When used in conjunction with words which are not themselves used to measure time "in the course of" often signifies a relationship which is not purely, or even primarily, temporal - as when Viscount Haldane said in Thom or Simpson v. Sinclair (1917) AC 127 , "the decided cases, as was established in the course of the able and elaborate arguments . . . are not altogether in harmony" (1917) AC, at p 133 . Expressions such as "in the course of business" signify the scope and conduct of an activity; and in that sense the phrase "in the course of employment" was well established in the language of the law long before the first Workmen's Compensation Act (see Coleman v. Riches [1855] EngR 415; (1855) 16 CB 104 (139 ER 695) . That Act took a well-known expression and coupled it with new words, thus starting the phrase "accident arising out of and in the course of his employment" on its contentious course. There was at one period a sustained difference in the House of Lords as to the meaning and effect of these words, with what Viscount Dunedin was later (in Simpson v. London, Midland and Scottish Railway Co. (1931) AC, at p 351 to describe as two opposing tendencies of construction (1931) AC, at p 357 . There was at that period no general agreement that the words "arising out of and in the course of" stated two separate conditions that an accident had to satisfy if it was to ground a claim for compensation. There was a view that the words "in the course of" qualified or explained the words "out of" (per Lord Atkinson in St. Helen's Colliery Co. Ltd. v. Hewitson (1924) AC, at p 75 ). But later Viscount Dunedin stated as a proposition "as to which there is now no controversy" that "the questions of 'arising out of the employment' and 'in the course of the employment' are two separate questions, and must both, as well as the fact that there was an accident, be made good by the claimant": Simpson v. London, Midland and Scottish Railway Co. (1931) AC, at pp 357, 358 . That is the law in England, and elsewhere where the two expressions are still coupled by the word "and". The double aspect of the combined phrase, and a somewhat narrow construction of the words "arising out of", which at one period prevailed, produced much unhappy litigation. Cases occurred where workmen were held not entitled to compensation, although they had suffered injury from dangers encountered by reason of their employment. Those Australian legislatures which substituted "or" for "and" rendered those decisions inapplicable. But the effect of this change - which, having regard to some of the cases in which claims for compensation had been defeated, may very properly be considered a most beneficent reform - can be misunderstood. (at p580)
5. In support of the contention that the accident in this case arose in the course of the employment many cases were cited to us in which the question was whether what a man who had suffered an injury by accident was doing at the time was something that it was in the course of his employment to do. Most of them arose because the accident occurred while the worker was away from his actual work, as for example, during a meal break or some other interval when he was not performing the task he was engaged to do. Those cases, which are all referred to in Humphrey Earl Ltd. v. Speechley [1951] HCA 75; (1951) 84 CLR 126 and in Pickering v. T. H. Muldoon & Co. (1955) 55 SR (NSW) 271; 72 WN 325 , have little bearing on the question here. The question in all of them was whether the worker was in the course of his employment at the time he was injured. That, however, is not the question here. The question here is was the accident one arising in the course of employment. The inquiry is not, whether what the employee was doing at the relevant time was within the course of his employment, but what kind of accidents answer the description in s. 9. Cases in which the relevant inquiry was what activities were within the scope of an employee's duties or incidental thereto are, however, not without some negative significance for the inquiry in hand. For none of them supports the proposition that a purely temporal relationship between injury and employment suffices. In all of them the injury occurred as the result of something in some way associated with the employment. The existence of some physical object at the place where the worker was in the course of his employment was in each case a necessary antecedent of the event that occurred. Apart from his employment, the worker could not have been injured as he was; for a motor car on his employer's premises, a train on a railway line he was crossing, a primus stove which exploded during a tea break or some similar thing or occurrence associated with the employment was a necessary factor in each case. (at p581)
6. Here the deceased man was at work and therefore in the course of his employment at the time he vomited. But it only begs the question to say that that establishes he was injured by an accident in the course of his employment. No circumstance of the place or the employment had to exist for the vomiting or the rupture to occur. Counsel for the appellant argued strongly that that was an irrelevant consideration. He contended that "in the course of" must be given some meaning different from "out of", otherwise nothing would have been accomplished by the change from "and" to "or". This argument makes it necessary to examine the distinction between accidents arising out of and arising in the course of employment It has been said that the words "arising out of" indicate a causal relation, and the words "in the course of" a temporal relation, with the employment. Perhaps the earliest and among the best known of such statements are those of Buckley L.J., as he then was, in Fitzgerald v. W. G. Clarke & Son (1908) 2 KB 796 and Craske v. Wigan (1909) 2 KB 635 , where he said: "the words 'out of' point, I think, to the origin or cause of the accident; the words 'in the course of' to the time, place, and circumstances under which the accident takes place". Viscount Haldane thought that this analysis was "unduly abstract", and said: "I doubt whether the time, place and circumstances can properly be so sharply distinguished from the conditions which are described as belonging to the origin and cause . . .": Thom or Simpson v. Sinclair (1917) AC, at p 138 . His judgment was concerned with the nature of the causal element in the requirement that the accident must arise out of the employment and not with the nature of the requirement that it must (under the English Act) also arise in the course of the employment. The words I have quoted mean that considerations of time, place and the circumstances in which the accident occurred may be involved in "arising out of". They do not mean that time alone is involved in "in the course of". The most that, it seems to me, can be got from the many dicta in numerous cases in which the distinction between the two expressions is referred to is confirmation of Lord Wright's observation in Dover Navigation Co. Ltd. v. Isabella Craig (1940) AC 190 : "I do not know that attempts to amplify the language or define the dividing line have been very illuminating, though help in deciding any particular problem may be obtained by examining actual reported cases, not generally as laying down principles of law, but as showing how in particular circumstances of fact the dividing line has been drawn" (1940) AC, at p 199 . The cases show that the term "accident arising out of and in the course of employment" had a wider connotation, and therefore a lesser denotation, than it would have had if either "out of" or "in the course of" had been omitted. But that does not mean that the two elements in the compound expression "arising out of and in the course of" were wholly independent and unrelated concepts. Now that the Commonwealth Parliament has put asunder the two expressions that formerly were joined in one, statements about the part each played when they were united, although still helpful, must be applied cautiously. Fitzgerald v. W. G. Clarke & Son (1908) 2 KB 796 and Craske v. Wigan (1909) 2 KB 635 were cases in which it was said that the accident arose in the course of, but not out of, the employment. In the former the accident occurred because of the practical joke of unruly workmates. It could not have occurred, however, unless the injured workman had been employed. In the latter a domestic servant was injured while present in the home, and thus in the course of her employment, although not at the particular time performing any duties. A cockchafer, attracted by the light in the room, came through the window, and so startled her that she threw up her hand and hit her eye. Suppose that, instead of a beetle, a bullet had come through the window and struck her - a ricochet from a rifle fired in a neighbouring field - the legal position must have been the same. Unless she had been where she was in the course of her employment, she would not have been alarmed by the beetle nor struck by the bullet. Yet the accident did not arise out of her employment, although it occurred in the course of it. The distinction between the facts in such cases and in others like Lawrence v. George Matthews Ltd. (1929) 1 KB 1 may seem a fine one; for in that case injury by a tree falling on to the road was held to arise out of the employment. But the judgment of Russell L.J., as he then was, which was quoted by Lord Wright in Dover Navigation Co. v. Isabella Craig (1940) AC, at p 201 emphasized that there is a distinction between a danger casually occurring in a place and a danger causally connected with the place as a place - that is to say, a danger arising from some quality of the place itself. Any accidental injury caused to a worker by contact with part of the premises where he works - as, for example, from a wall falling down, or by his slipping on the floor - is now regarded as arising out of his employment. This may (where the conjunct phrase prevails) have capricious results, as was recognized by the Privy Council in the case arising from the New Zealand earthquake (Brooker v. Thomas Borthwick and Sons (Australasia) Ltd. (1933) AC 669, at p 678 ). But it was the ground on which the accidents there in question were held to have arisen out of, as well as in the course of, the employments. So too, when a man in an epileptic fit fell into a water-filled furrow and was drowned, and when in another case a sufferer from diabetes collapsed against a part of the machinery where he worked and was thus injured, the accidents arose out of and in the course of their employments: Wilson v. Chatterton (1946) 1 KB 360 ; Smith v. Australian Woollen Mills Ltd. [1933] HCA 60; (1933) 50 CLR 504 . As was said in the joint judgment of Gavan Duffy C.J., Rich, Dixon, Evatt and McTiernan JJ. in the latter case, "the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work" (1933) 50 CLR, at p 516 . On the other hand, things coming from outside the premises, such as beetles, bombs, bullets and lightning (apart from cases of special exposure to the risk) can cause injuries without the place being dangerous as a place, and without any physical contact with the place contributing to the injury. In such cases the accident, although it arises in the course of the employment, does not arise out of it. For, to establish that an accident arose out of a man's employment, it is, Viscount Haldane said, in Thom or Simpson v. Sinclair (1917) AC 127 not enough that something happened to him "which would not have happened to him if his employment had not caused him to be in the place at which the accident occurred at the time of its occurrence, the place and time having thus been conditions of the result brought into existence by the employment" (1917) AC, at p 133 . More than that is necessary to constitute the kind of causal connexion that the words "arising out of" postulate. Viscount Haldane's judgment explains the sense of the word cause that is involved in the statement that the words "arising out of" express a causal relationship. More importantly for present purposes, it also states convincingly that the employment may be a necessary condition without which the accident could not have occurred and yet not, in the relevant sense, causally associated with it. This, in my view, disposes of the argument that to read "in the course of" as meaning that the employment was a condition sine qua non of the accident is to give it the same meaning as the phrase "arising out of" has. Law may at times seem to flounder somewhat when it approaches questions of causation, professing to avoid philosophic consideration of what is essentially a problem of philosophy. Law must, for its purposes, extract one or more circumstances out of the whole complex of antecedent conditions of an event as its cause. I adverted to this in connexion with worker's compensation law, especially in relation to the cause of death, in The Commonwealth v. Butler [1958] HCA 56; (1958) 102 CLR 465 and in Hussey's Case [1959] HCA 55; (1959) 102 CLR 482 . It is not necessary to discuss it here. The distinction between conditions that provide the setting without which an event could not have happened and the concept of cause here adopted may not be easily formulated. But it is, I think, correct to say, as has been recently said in learned discussions of this topic, that the distinction is "an inseparable feature of the historian's and the lawyer's and the plain man's use of causal notions", and as "obstinately marked by common sense", however it may be criticized philosophically: Causation in the Law, by Professor H. L. A. Hart and Mr. A. M. Honore, at page 10; and an article by the same authors (1956) 72 LQR, at p. 73. (at p584)
7. The question then comes back to this: It being possible, without usurping the meaning of the phrase "arising out of", to read "arising in the course of the employment" as requiring an association beyond a mere temporal coincidence between the employment and the accident - should the phrase be read as requiring such an association? I think it should. The appellant placed much reliance on a passage in the judgment of the Privy Council in James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1, at p 15 . But, when read in relation to the Act in question in that case, it does not I think conclude the question here. The respondent referred to the decision of this Court in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 . That was a case of incapacity resulting from a progressive heart disease. The judgment must be read in relation to the facts; but it contains statements that clearly support the view that a merely temporal relation between employment and accident does not suffice to make an accident one arising in the course of the employment. In Davidson v. Mould (1944) 69 CLR 96 the question, which arose under the Workers' Compensation Act 1926-1942 (N.S.W.) was whether the worker had received an injury in the course of his employment. That Act does not use the word "accident". The case thus raised in a simple form the meaning of the words "in the course of employment". The worker there was injured while having his midday meal in the workshop where he worked. He was opening a bottle of soft drink on a vice in the workshop when the metal top flew off and struck him in the eye. It was held by the majority of the Court, Latham C.J. dissenting, that the injury occurred in the course of the employment. I do not read any of the judgments as suggesting that a merely temporal relationship between injury and employment sufficed. I quote the following passage from the judgment of Starke J. in which I have italicized words that point the essential difference between that case and this: "The result was untoward and wholly unexpected, but yet an incidental risk of the employment to which the worker was exposed at that particular place and time. Some extravagant illustrations were put in argument, such as a worker lunching in his workroom with the employer's sanction and developing ptomaine poisoning from eating his sandwiches or being poisoned from drinking liquids containing deleterious substances, but 'of course,' as Atkin L.J. said in Smidmore v. London and Thames Haven Oil Wharves Ltd. (1921) 14 BWCC, at p 120 , 'if the risk from which he suffered was a mere risk that anybody incurs in taking tea, that is to say that he might drink his tea too hot, or that he might choke himself with too large a piece of bread and butter, or that he might injure himself by cutting himself with a knife in spreading his butter or otherwise using it, I think a difference might very well arise' and would afford no evidence that the injury happened out of or in the course of the worker's employment" (1944) 69 CLR, at pp 110, 111 . It will be noticed that Starke J. regarded the passage from Lord Atkin's judgment as applicable to a statute employing the word "or" not "and" and couched in the language of the New South Wales Act. (at p585)
8. The appellant drew attention to s. 9A of the Act which refers to injury by accident caused to an employee "while he is travelling to or from his employment". In Hornsby v. The Commonwealth [1960] HCA 27; (1960) 103 CLR 588 , judgment in which is being given on the same day as this judgment, I have considered that provision, and given my reasons for thinking that it does not control the meaning of the words "in the course of" in s. 9. (at p586)
9. My conclusion on the whole matter is that if the accident relied upon as causing the injury could have happened without the injured man having been employed, it does not arise either out of or in the course of his employment. Here no circumstance of his place of work or of his work was a necessary condition of the deceased man's vomiting or of the unfortunate consequence of his doing so; so that the accident did not arise in the course of his employment. Without any illumination from authority, the words of the Act alone lead, I think, to this conclusion. The Act is obviously intended to give the servants of the Commonwealth rights similar to those that other employees enjoy under workers' compensation laws. These enactments have had an important place in our law for half a century or more. Their words are, it has been said on the highest authority, to be construed in a popular and not in a technical sense, and given their ordinary meanings in popular language. This remains true, although it is now twenty years since Lord Atkin (in Harris v. Associated Portland Cement Manufacturers (1939) AC 71, at p 78 ) spoke of the "wagon load of cases" that had come about from a failure to remember this; and there have been further wagon loads since. The generally recognized purpose of workers' compensation law is to require employers to pay compensation in respect of death or disablement that befalls a worker in consequence of his employment. Industry rather than the individual is thus made to bear the cost of the injuries and ailments it causes. The alteration in some statutes of the word "and" to the word "or" was, having regard to the cases that led to it, made to aid, not to alter, this broad policy of workers' compensation law. It is against this background that the words "accident arising in the course of employment" must be read. To construe them as entitling a worker or his dependants to receive a payment in every case where he falls sick, or suffers any mishap or dies at work, would be contrary to the fundamental purpose and policy of this law. It would not be compensation for the injuries that befall men because they are workers in industry, but rather an incomplete and erratic form of general health, accident and life insurance. To construe this Act as meaning that a man who was injured because he vomited or coughed at work, as a result of some malady or seizure unrelated to his work, is in a different position than he would be if he vomited or coughed at home gives it a capricious effect. I do not think Parliament intended the Act to have an operation so irrational. A different construction of the Act is open. It is that which I consider its words in their ordinary meaning bear. No binding authority stands in its way. I would dismiss the appeal. (at p587)
ORDER
Appeal allowed with costs.Discharge the order of the County Court at Melbourne. In lieu thereof order that the appeal of the appellant Gertrude Anne Kavanagh to the County Court from the determination of the Delegate of the Commissioner for Employees' Compensation be allowed with costs and that it be declared that the said Gertrude Anne Kavanagh is entitled to compensation in accordance with the first schedule to the Commonwealth Employees' Compensation Act 1930 - 1956. tion Act 1930 - 1956.
Order that the cause be remitted to the County Court to be dealt with consistently with this judgment according to law if any further matter should arise.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCA/1960/25.html