Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 (1 August 1962)

HIGH COURT OF AUSTRALIA

THE COMMONWEALTH v. OLIVER [1962] HCA 38; (1962) 107 CLR 353

Workers' Compensation

High Court of Australia
Dixon C.J.(1), Menzies(2) and Owen(3) JJ.

CATCHWORDS

Workers' Compensation - Commonwealth employees - "Injury by accident" - Arising "in the course of his employment" - Causal connexion unnecessary - Injury by accident caused when playing game during luncheon break - Commonwealth Employees' Compensation Act 1930-1956 (Cth), s. 9 (1).

HEARING

Melbourne, 1962, May 22;
Sydney, 1962, August 1. 1:8:1962
APPEAL from the County Court at Melbourne, Victoria.

DECISION

August 1.
The following written judgments were delivered:-
DIXON C.J. Arthur Charles Oliver, the respondent to this appeal, is employed of work are from 8 a.m. to noon and from 12.30 p.m. to 4.30 p.m. The luncheon break of half-an-hour is not counted as a period of employment in calculating the forty-hour week. During a luncheon interval on 5th May 1961 he tore the muscle of the calf of his right leg. The injury was not serious but it needed some medical treatment and it meant an absence from work for a fortnight for which Oliver lost his pay. He claimed compensation under the Commonwealth Employees' Compensation Act 1930-1959 (Cth) but the Delegate of the Commissioner under the Act disallowed his claim. He appealed under s. 20 to the County Court at Melbourne and there his appeal was allowed. Now in turn the Commonwealth appeals to this Court. The amount involved must be small but presumably, notwithstanding the traditional difficulty of settling by judicial authority guiding principles which will make the application of the phrase "arising out of or in the course of his employment" either simple or certain, it has been thought that there is sufficient hope of the case producing a useful precedent to justify an appeal. The injury was sustained while Oliver was taking part in what was dignified by the name of a cricket match on the concrete apron in front of a hanger. He tripped over a domed metal disc in the pavement which was intended to serve as an earth point for tankers or for aircraft during refuelling. It was the practice for Oliver to leave his work a few minutes before 12 o'clock, go to the canteen, obtain the lunch of three or four men as well as his own and bring it to the hangar. The cricket match was an organized affair going on at the lunch interval from day to day. According to the findings he came out, distributed the luncheon packets and took his position before eating his own lunch. A ball thrown in rolled towards him, he walked forward to pick it up and he tripped over the earthing point. There are few additional facts that matter. The most important is that having regard to the shortness of the luncheon interval, the distant situation of the aircraft factory at Avalon and the existence of the canteen, employees would, as a matter of course, remain on the premises during the interval and it was a recognized practice to play some game during the interval. There was, however, a notice some five or six years old exhibited saying that games of any description must not be played on concrete areas in front of hangars. This had long been ignored. About two years before the accident a safety bulletin had been issued by an officer called the plant and safety engineer warning employees of the danger of playing games on hard surfaces and asking for co-operation. These neglected notices or warnings cannot matter on the question whether the personal injury which Oliver suffered was caused by accident arising in the course of his employment by the Commonwealth. And that appears to me to be the only issue. Section 9 (1) of the Act provides the two well-known conditions as alternative foundations of liability ; one is enough and we may ignore the suggested possibility of the accident arising out of the employment. It has now been made clear by judicial decision that, apart from cases where the question whether an incident of cardiac or other disease may be regarded as an employment injury, the question whether an accident occurs in the course of the employment is independent altogether of the question whether the employment contributed causally to the accident. In the course of the progressive enlargement of the conditions which, under the Workers' Compensation legislation, have provided the limits upon the description of injury by accident that is compensable, probably the most striking, as well as perhaps the earliest, was the substitution of the requirement that the accident should arise either out of the employment or in the course of the employment for the long standing and notorious expression "arising out of and in the course of the employment". This substitution was made in Western Australia much earlier than in New South Wales or Victoria. The existence of the double condition had necessarily made it natural to look for a connexion between, on the one side, not only the nature of the employment but also the fulfilment of its duties and the pursuit of its incidents, and on the other side, the occurrence of the accident or the sustaining of the injury. This habit of thought was not completely broken by the change of "and" to "or": for the instinctive feeling persisted that the accident or injury must be in some measure occasioned by or related to the employment. At an early stage, in a Western Australian case Pearson v. Fremantle Harbour Trust [1929] HCA 19; (1929) 42 CLR 320 , this Court took a definite step towards ridding the notion of "course of" from prepossessions in favour of connexions depending on "occasion" or "cause". But the conception of what sphere of activity "course of employment" covered was somewhat restricted. It had been realized that the words covered not only the performance of duties and the pursuit of the ends laid down for the employee but also things which were but adjuncts or incidents growing out of the employment. Lord Loreburn some years earlier had said of the matter: "Everything, of course, must depend upon the nature of what he has to do, but allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act. A man may be within the course of his employment not merely while he is actually doing the work set before him, but also while he is where he would not be but for his employment, and is doing what a man so employed might do without impropriety.": Low or Jackson v. General Steam Fishing Co. (1909) AC 523, at p 532 . The field covered by the general conception of what is incidental, ancillary or consequential to work but yet sufficiently within the sphere of the man's employment to make it proper to say that when he is within it he is in the course of employment has doubtless widened its practical boundaries with the enlarged conception of what belongs to the factory or other organized industrial unit in the amenities and welfare of the members of the staff or labour force. It is a long time since in St. Helens Colliery Co. v. Hewitson (1924) AC 59 a coal mining case, Lord Wrenbury said: "The employment may be to do some defined manual work, say, hewing coal, but the accident need not arise when the man is actually using his pick. He may be going down in the cage. He may be resting between shifts. He may be taking a meal. He may be merely standing by, waiting for the next job. All these, and such as these, are not 'the employment' but are incidental to the employment. The man is in the course of his employment - is engaged in his employment in all such cases. 'They also serve who only stand and wait'. In every case the facts have to be ascertained and discrimination made between the time during which or the place at which the employment is and those during or at which it is not being carried on" (1924) AC, at pp 91, 92 . The list Lord Wrenbury gives of course well illustrates his meaning but nowadays would be considered to be somewhat narrowly conceived. Lord Buckmaster, in John Stewart and Son (1912) Ltd v. Longhurst (1917) AC 249 protested against what he called the error of an effort "to obtain from decided cases a fixed standard of measurement by which to test the meaning of the words in the statute 'in the course of' and 'arising out of' employment. Some of the reported cases" he said, "appear to me to have made the same mistake and to have attempted to define a fixed boundary dividing the cases that are within the statute from those that are without. This it is almost impossible to achieve. No authority can with certainty do more than decide whether a particular case upon particular facts is or is not within the meaning of the phrase" (1917) AC, at pp 258, 259 . But at the period of which I have already spoken a particular case was decided by this Court upon particular facts and it is said for the appellant Commonwealth that the particular facts so closely resemble those of the present case that there is no room for distinction, and that by the decision it is judicially established that the facts of the present case are outside the meaning of the phrase "in the course of the employment". The decision is Whittingham v. Commissioner of Railways (W.A.) [1931] HCA 49; (1931) 46 CLR 22 . In a way, the facts are surprisingly close. The employee Whittingham - a machinist in the Commissioner's workshops - worked a forty-four-hour week, the daily hours being worked from 7.30 a.m. to 11.54 a.m. and 12.36 p.m. to 5 p.m. with a luncheon interval of forty-two minutes which was not treated as time of duty. There was a yard of undefined but apparently considerable size and in that employees played cricket in the luncheon interval. Whittingham, having eaten his lunch a quarter of an hour before work resumed, walked about fifty or sixty paces in the yard. When he was some thirty yards from the players he was hit by a cricket ball and injured. A majority of this Court (Rich and Starke JJ. and myself, Evatt and McTiernan JJ. dissenting) decided that Whittingham could not recover compensation. The dissenting judgment of Evatt J. was put on the ground that the accident arose out of the employment, a view which I still find myself unable to accept, unless first it be held that it arose in the course of his employment. But McTiernan J. placed his dissent definitely on the ground that the "course of the employment" went on over the luncheon interval. His Honour said: "In the circumstances of this case I find it impossible to mark any point of time in the appellant's 'lunch time' when the course of the employment terminated. The alternative conclusion would appear to be that when the appellant finished his lunch in the workshop and began his walk, a gap occurred in the course of the employment which was due to subsist for about sixteen minutes, but when the whistle sounded at 12.54, the course of the employment would have been restored" (1931) 46 CLR, at pp 39, 40 . (at p358)

2. I shall not analyse what Rich J. and Starke J. said as to why the injury was not sustained by Whittingham in the course of his employment, one reason being that I think that it must be read in the light of their Honours' judgments in Davidson v. Mould [1944] HCA 10; (1944) 69 CLR 96, particularly pp 100, 109, 110, 111 . For myself, I think that what I said conformed with the conceptions prevailing at the time of what sufficiently belonged to the employment to be "described by the words 'belonging to', 'ancillary to', 'incidental to', 'adjuncts of' or 'arising out of' his employment" (1931) 46 CLR, at p 30 . But as to the passage following (1931) 46 CLR, at p 31 I should nowadays perhaps regard Whittingham's presence in the yard near the cricket players as more naturally within the scope of the employment or perhaps I should say as more regularly and commonly accepted as a concomitant or incident of his employment. It may be said parenthetically that the example I gave of an employee being struck with a cricket ball in passing a cricket ground on his way to work now tells the other way because the injury would be compensable under s. 9A. As to the same passage I may add that I should regard it as inconsistent with later authority to speak in terms involving the need of an attribute implying some nexus of causation, however slight, as affording a test. But all this seems to go to what is after all a question of fact. Be the question one of fact or mixed fact and law, it is on that that the decision rests. It seems desirable to add a reference to Pickering v. Muldoon & Co. (1955) 55 SR (NSW) 271; 72 WN 325 , a not dissimilar case, where the judgments scarcely diverge in principle but only in result on a question in pari materia with that before us, and to say that I prefer the dissenting reasons of Roper C.J. in Eq. In the present case I think that the circumstances of the employment make it clear that the employees were not expected to leave the premises for lunch, that the custom of playing for a time during the thirty minutes allowed for lunch was a recognized practice and the proper inference is that the course of the employment extended over that half-hour. Once the conclusion is reached that the course, of the employment so extended there is a decisive reason for deciding, on that basis, that the accident was in the course of the employment notwithstanding it arose from a game. It lies in what was held in the case of Kavanagh v. The Commonwealth [1960] HCA 25; [1960] HCA 25; (1960) 103 CLR 547 which is expressed as follows in the headnote: "Personal injury by accident which occurs to a Commonwealth employee whilst performing his duties or whilst doing something incidental thereto arises 'in the course of his employment' within s. 9 (1) of the Commonwealth Employees' Compensation Act 1930-1956 notwithstanding that there is no causal connexion between the injury and the employment or its incidents." I venture to refer to a long passage in which I recounted my view of this fully developed doctrine (1960) 103 CLR, at pp 556, 557 and I will repeat a passage in which Fullagar J. stated his view upon the point: "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" (1960) 103 CLR, at pp 558, 559 . (at p359)

3. For the foregoing reasons I am of opinion that the appeal should be dismissed. (at p359)

MENZIES J. This appeal requires us to consider the correctness of a decision of the County Court at Melbourne that an employee of the Commonwealth at the Government Aircraft Factory, Avalon Aerodrome, became entitled to compensation under s. 9 of the Commonwealth Employees' Compensation Act because he was injured during lunch-time when he was off duty by knocking his heels upon a concrete earthing plug whilst squatting down in the field in the course of a game of cricket which he and fellow employees were playing upon the apron to No. 3 hangar. The Delegate of the Commissioner disallowed the claim but upon appeal it was allowed. It is from the decision of the judge of the County Court that the Commonwealth has appealed and the appeal to this Court is, of course, a full appeal upon the facts and the law: The Commonwealth v. Thompson [1960] HCA 28; (1960) 104 CLR 48 . (at p359)

2. The following facts may be gathered from the evidence. The apron upon which the match was being played was part of the place of the respondent's employment and, although cricket at that particular place was forbidden, the prohibition was not enforced. Avalon Aerodrome is an isolated place about fourteen miles away from Geelong. The Commonwealth provides a canteen there for the convenience of employees. Although employees are at liberty to leave the Aerodrome at lunch-time, it is unlikely that they would do so - indeed, it is inevitable that as a rule they would not. The playing of cricket matches between groups of employees progressively over a number of lunch-times was arranged and supported by the employees' social club and was countenanced, if not encouraged, by the Commonwealth. Upon the day of his injury the respondent had been to the canteen to buy lunches for himself and two or three others and, having reached the site of the game, he joined in it before he ate his own lunch. (at p360)

3. These facts warrant the conclusion that the respondent did suffer injury by accident but seem to me to afford an insufficient basis for a finding that his accidental injury arose out of his employment which involves a causal relationship between the employment and the injury. The finding in his favour is, however, that in all the circumstances it did arise in the course of his employment. (at p360)

4. I attach but little importance to the particular prohibition against playing cricket at the place where the respondent was playing when he was injured - a prohibition upon which the appellant relied notwithstanding that cricket seems to have been played there regularly. There is, I think, insufficient evidence upon which to conclude that the prohibition against playing games on the concrete area in front of the hangars had been waived by the Commonwealth, but the notices and bulletins relied upon to prove the prohibition itself unmistakably countenanced the playing of games at Avalon during lunch breaks; for instance, the safety bulletin of 24th April 1959, after stating that the "management is not opposed to employees seeking relaxation by the playing of games during crib-time", concludes: "In the case of Avalon, it is essential that games are not extended into the Flight Field or adjacent to Aircraft Taxiways for fear of obstructing the movement of out-going or incoming aircraft". In this state of affairs I do not think that the respondent's injury, if otherwise arising in the course of his employment, was put outside it merely by reason of his failing to observe the prohibition against playing games at the particular place. A worker may disobey an order or regulation but still remain in the course of his employment. I do not regard the prohibition as putting the area in front of the hangars out of bounds to employees during lunch breaks; it is nor more than a limited prohibition against playing games there. If the prohibition had been against employees off duty resorting to those areas it may be that it should be regarded differently, for in a period of time off to resort to a prohibited area would be a ground for regarding the worker present there as being outside the course of his employment. (at p361)

5. Two matters upon which Mr. Harris (for the respondent) placed a good deal of reliance I also put on one side. The first was that it was by bumping his heels on what was described as part of the installation of the place that the respondent's injury occurred. It seems to me that the position would be exactly the same if he had hurt himself simply by bringing his heels down hard upon the concrete surface of the apron. The second was that one of the other cricket players was an aircraft foreman who was an employees' representative upon the safety organization at Avalon. I am not sure just what significance Mr. Harris sought to attach to this but I regard it as of no significance. The participation of that fellow employee did not tend to show that the Commonwealth sanctioned playing cricket upon the concrete apron. (at p361)

6. The problem is then simply the correctness of the finding that an employee who was injured playing cricket at lunch-time in the circumstances stated was injured in the course of his employment according to the terms of an Act which, although it contains special provisions in favour of employees travelling to and from their employment (s. 9A), contains no provision to the effect that an injury to an employee present at his place of employment, after having on the day in question attended there pursuant to his contract of employment, is to be deemed to have arisen out of or in the course of his employment: cf. Workers Compensation Act 1959 (Vict.), s. 8 (2). (at p361)

7. It is only by reason of the way in which the concept of the course of a worker's employment has been gradually widened by decision after decision that injuries happening at lunch-time when a worker is off duty and is doing something that upon its face is remote from his work have been regarded as falling within that concept. Perhaps no case shows the development of the extension better than Davidson v. Mould [1944] HCA 10; (1944) 69 CLR 96 where this Court upheld a decision of the Full Court of New South Wales that a worker who, at his employer's premises during a lunch break, suffered injury to his eye while removing the crown seal from a bottle of coca-cola had been injured in the course of his employment. In his dissenting judgment Latham C.J. said: "It has not yet been finally established that whenever an injury is received by a worker on the premises of his employer at a time when he is entitled as an employee to be upon those premises, he is entitled to recover compensation, whatever the nature and circumstances of the injury may be" (1944) 69 CLR, at p 106 , and in criticizing Knight's Case (1938) 55 TLR 227; (1938) 4 All ER 667 - injury while lunching in canteen by a dart thrown by a fellow employee held to be in course of employment - the learned Chief Justice said that that case "ignores the fact that there must be some relation other than a merely temporal relation between an injury and an employment to justify a finding that the injury arose in the course of the employment" (1944) 69 CLR, at p 107 . It seems to me that the second observation is inconsistent with the later decision in Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 where it was held that personal injury by accident which occurs to an employee while performing his duties or whilst doing something incidental thereto arises in the course of his employment and although the judgment of the majority in Davidson v. Mould [1944] HCA 10; (1944) 69 CLR 96 does not go to the extent of establishing the proposition which the learned Chief Justice said had not been finally established, it does show that where an employee is upon his employer's premises with his employer's sanction during a break in his employment and is injured, what seems to be a very slight connexion between what he was doing at the time of his injury and his employment is sufficient to bring the injury within the course of his employment. The majority approved of the judgment of Jordan C.J. (1944) 69 CLR, at pp 108, 117 in which it was said: "If the terms of the contract of employment provide that the worker, during the course of the stipulated working day, may cease work for one or more short periods for the purposes of resting or refreshing himself, and he (the employer not objecting) on such an occasion occupies the period between the cessation of one period of work and the commencement of another by remaining in his workroom, it is, to say the least of it, possible to regard him as being in the course of his employment during the whole of the period that he so remains - as still doing something which can be regarded as being incidental to his employment. Nor would his position be bettered or worsened in this respect if he spent part of the time in eating and the remainder in dozing or all of it in resting" (1943) 44 SR (NSW) 113, at p 117; 61 WN 117, at p 120 . It is true that this passage refers to the worker "remaining in his workroom" but earlier his Honour had said: "I think that if a worker is using part of his employer's premises for his own purposes during a rest period, it is immaterial, in this connexion, whether he is doing so by the mere permission of his employer or in the exercise of a legal right conferred by his contract of employment" (1943) 44 SR (NSW), at p 117; 61 WN, at p 120 and later his Honour took the instance of a worker leaving his employer's premises altogether as prima facie interrupting the course of his employment. In any event it seems to me that it can hardly matter whether the worker remains in his workroom or not provided that he is where he is by permission of his employer. This and other authorities, of which Blovelt v. Sawyer (1904) 1 KB 271 ; Knight v. Howard Wall Ltd (1938) 4 All ER 667 and Armstrong, Whitworth & Co. v. Redford (1920) AC 757 are examples, do seem to me to establish that a worker who is having lunch on his employer's premises with his employer's sanction is, save in exceptional cases, "doing something which he was reasonably required, expected or authorized to do in order to carry out his duties", to use the words of Dixon J. in Humphrey Earl Ltd. v. Speechley [1951] HCA 75; (1951) 84 CLR 126, at p 133 to describe when an accident which happens in an interval between work occurs in the course of the worker's employment. If this is to be said about taking lunch, why should it not also be said about taking a walk, dozing in the sun, or playing a game of table tennis or cricket during a break which is provided as a respite from work and not merely to enable the worker to have something to eat and drink? (at p363)

8. Moreover, if it be true that the respondent here would have been doing something incidental to his employment while he was eating his lunch, presumably the same would be true of his getting his lunch at the canteen and carrying it to the place he had chosen to eat it and so it may be asked, in this particular case, when, in the half-hour break when the respondent was expected to remain upon the aerodrome, did he cease to do something incidental to his employment and start to do something that was merely for his own amusement? If the answer to be offered is, when he began to play cricket, the retort might be made: "But not if he happened to have been eating an apple at the same time". The answer to these refinements is, I think, that eating lunch is not something that has a particular intrinsic connexion with work that other lunch-time activities lack but is merely one of the things incidental to the employment for which a lunch break is intended to provide. The question is always whether what was being done at the critical time was incidental to the employment. The Commonwealth contends, however, that the answer to this question in the particular case is authoritatively provided by the decision of this Court in Whittingham v. Commissioner of Railways (W.A.) (1931) 46 CLR 22 which establishes that strolling upon an employer's premises where a cricket match is being played at lunch-time is not incidental to a worker's employment. That case did decide that in the circumstances there and in the industrial setting of that time a worker who was strolling during the luncheon interval on a recreation ground attached to the workshops at which he was employed when he was struck in the eye with a cricket ball, hit probably by one of his fellow workers who were playing cricket there, did not suffer an injury in the course of his employment. Rich J. said: "The accident did not happen in the course of his service or while he was doing something which was an adjunct to or an incident of his service" (1931) 46 CLR, at p 26 . Dixon J. considered that the connexion between his walk and his work was too remote and said: "He was not engaged at the moment in doing something directed towards the performance of his duty as is the workman going to his place at the employer's works, or immediately consequential upon it as is the man who is leaving his place of work . . . . 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" (1931) 46 CLR, at pp 30, 31 . For present purposes, however, when our task is to find the principle of law upon which the earlier case was decided, the most significant part of his Honour's judgment is where he said: "There can 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. . . As the test is not, and could not be, whether the employee was obliged to act as he was doing when the accident occurred, the inclusion of things arising out of the actual performance of his duty was, no doubt, inevitable, but, as a result, the sufficiency of the connexion between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment" (1931) 46 CLR, at p 29 . This passage indicates clearly that the decision upon the facts of one case cannot be applied to another case in which time, place, circumstance and practice may be different. (at p364)

9. It seems to me that we must determine the question before us upon the evidence looked at, not against the background of a particular decision given thirty years ago upon its own facts, but against the background of what seems to me to be a widely-accepted and sensible present-day practice of employers encouraging workers to spend intervals between working hours, which must often be spent upon the employers' premises, in recreational activities. Against this background the evidence here which shows that the Commonwealth adopted the practice referred to, does seem to me to point to the conclusion that in playing cricket as he did, the respondent was engaged upon an activity incidental to his employment. (at p365)

10. I do not think I am in any way departing from authority when I say that for the foregoing reasons I agree with the decision of the County Court judge that the respondent's injury happened in the course of his employment with the Commonwealth. I would therefore dismiss this appeal. (at p365)

OWEN J. The respondent to this appeal claimed compensation from the appellant, the Commonwealth of Australia, under the Commonwealth Employees' Compensation Act alleging that he had sustained personal injury by accident arising out of or in the course of his employment. His claim was disallowed by the Delegate of the Commissioner for Employees' Compensation but on appeal to the County Court at Melbourne, the learned County Court judge reversed the determination of the Delegate and found in the respondent's favour. (at p365)

2. At the material time the respondent was employed at the Commonwealth Government Aircraft Factory at Avalon, his working hours being from 8 a.m. to noon and from 12.30 p.m. to 4.30 p.m. It was the practice for the employees at the factory to eat their lunch on the premises during the luncheon break between noon and 12.30 p.m. and a canteen was provided by the appellant at which they might buy their lunch. On the day on which the respondent sustained his injury, he ceased work shortly before noon and went to the canteen where he bought some food for himself and several other employees. He carried the food to a place near one of the hangars in front of which was a large concrete apron on which a game of cricket between two teams of employees was in progress. Before eating his lunch the respondent, who was a member of one of the teams, took his place in the field and was fielding a ball when he tripped or slipped on a domed metal disc about 1 1/2 inches high set into the concrete as an earthing point for tank waggons fueling aircraft. As a result he injured a muscle in his leg and was unable to work for about a fortnight. The evidence was that there were, to the respondent's knowledge, two notices posted up in the hangar. One of them prohibited the playing of games on the concrete apron, the other drew attention to the danger of playing games, including cricket and football, on concrete and bitumen paving and requested employees who wished to play games during "crib time" to use "the selected areas". It appeared that over a period of many months prior to the date when the respondent was injured cricket had been played by employees on the concrete apron and the learned County Court judge found that the playing of games there was tacitly approved by those in charge of the factory and that the prohibition against play had been "waived". Some criticism was made of this finding but there was evidence from an aircraft inspector employed at the factory that this particular area had been "selected" as a playing area because it and the hangar which fronted it were not used by aircraft. The finding was therefore justified. His Honour held further that the respondent's injury arose out of or in the course of his employment and the real question is whether these findings were open upon the evidence. The expression "arising out of" the employment has long been held to require proof of a causal relationship between the employment and the injury and such a relationship is not established merely by proof that had the employee not been in the employ of the particular employer the injury would not have occurred. There was here no evidence of the existence of the necessary causal relationship and therefore nothing which could justify a finding that the accident which caused the respondent's injury arose out of his employment. (at p366)

3. It is necessary then to consider whether the finding that the accident occurred in the course of the respondent's employment can be supported. A long line of decisions shows that an accident which causes injury arises in the course of the employment only if it occurs while the employee is performing the duties which he is engaged to perform or is doing something which is reasonably incidental to the performance of those duties. "There can 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." (Whittingham v. Commissioner of Railways (W.A.) (1931) 46 CLR, at p 29 ), and this statement has been approved and applied in many decisions of this Court, one of the most recent of them being Kavanagh's Case [1960] HCA 25; (1960) 103 CLR 547 . Applying this test to the present case, the evidence leaves no room for a finding that the accident which caused the respondent's injury arose in the course of his employment. He was participating in a game of cricket during a break in his working hours and doing so for his own amusement and not for any purpose connected with or incidental to the performance of his duties. In all relevant respects the facts are indistinguishable from those in Whittingham's Case [1931] HCA 49; (1931) 46 CLR 22 . There the employee was injured by being struck by a cricket ball when he was taking a stroll on his employer's premises during a lunch-hour break and it was held that the connexion between what he was doing when he was injured and the work which he was employed to perform and activities reasonably incidental to the performance of that work was too remote to entitle him to recover. Counsel for the respondent in the present case submitted, however, that the accident could be said to have been due to a risk arising from the state of the appellant's premises, namely the existence of the metal dome on which the respondent tripped or slipped when fielding the cricket ball, and sought to bring the case within the authorities of which Thom v. Sinclair (1917) AC 127 is an example. There an employee was at work in a building the roof of which fell upon her while she was at work. It was held that her injuries arose out of and in the course of her employment because her duties required her to be where she was when the roof fell. But the reasoning in such cases has no application to a case such as the present one. An employee who engages in activities upon his employer's premises for a purpose unconnected with his work and who, while so engaged, is injured by accident, cannot be said to have been injured by an accident arising in the course of his employment. His presence in the place where the risk of injury by accident exists is not for the purpose of performing his duties or for any purpose incidental to or associated with the performance of those duties. (at p367)

4. The appeal should be upheld. The order of the County Court should be discharged and the determination of the Delegate of the Commissioner for Employees' Compensation restored. (at p367)

ORDER

Appeal dismissed with costs.