Landers v Dawson [1964] HCA 35; (1964) 110 CLR 644 (5 June 1964)

HIGH COURT OF AUSTRALIA

LANDERS v. DAWSON [1964] HCA 35; (1964) 110 CLR 644

Workers' Compensation (Vict.)

High Court of Australia
Kitto(1), Taylor(1), Menzies(1), Windeyer(2) and Owen(1) JJ.

CATCHWORDS

Workers' Compensation (Vict.) - Whether injury arose "out of or in the course of" the employment - Employee working broken hours - "Ordinary recess" - "Travelling between place of residence and place of employment" - Workers Compensation Act 1958 (Vict.), s. 8 (2) (a) (ii), (b) (i)*.

HEARING

Melbourne, 1964, May 13;
Brisbane, 1964, June 5. 5:6:1964
APPEAL from the Supreme Court of Victoria.

DECISION

June 5.
The following written judgments were delivered:-
KITTO, TAYLOR, MENZIES AND OWEN JJ. The Workers Compensation Board made an the payment of workers' compensation and thereafter stated a case settled by the parties for the opinion of the Full Court of the Supreme Court in which no less than fifteen questions were asked. Some of these the Full Court found it unnecessary to answer, the remainder it answered in favour of the respondent. The facts, as found by the Board, were that the appellant was employed by the respondent in a bakery at Nullawarre, a country town in Victoria. He lived in the respondent's house and, during the summer months, was available for duty at any hour of the day or night when he was required to work by his employer. At the bakery his work consisted of assisting with the dough-making, which was done sometime "after lunch" or "in the afternoon", and with the baking of bread at some later but unstated time. His work also included making morning deliveries of bread to local customers and, on several days a week, to customers at Peterborough, a seaside resort, about fifteen miles away. In the ordinary course of events he was not required for work between the time when he had completed his delivery rounds in the mornings and the time "after lunch" or "in the afternoon" when the dough-making began. It was found also that it was the appellant's practice during the summer months to go for a swim at Peterborough, with the respondent's permission, after he had made his deliveries there and before returning to the bakery where he would later begin his work mixing dough. On the day when he received his injury, he had completed his local deliveries of bread and had then left the bakery at about 10 a.m. to drive to Peterborough in his truck to make deliveries to customers there. Having completed those deliveries at some unstated time he, with the respondent's permission, drove to the swimming pool with some friends and went in for a swim. At about 11 a.m. he slipped or tripped in some way when making a running dive into the water, struck his head and broke his neck. The Board found that "after the applicant completed his deliveries of bread and had set out for his swim he entered upon a venture of his own. His time was his own until he intended resumption of work after lunch. The place of his last delivery was part of his place of employment until he departed from it on his own venture." It appears, although only by deduction from some of the questions asked in the stated case, that the Board was of opinion that the appellant's injury was one which had arisen "out of or in the course of his employment" because of the provisions of s. 8 (2) (a) (ii) and (b) (i) which extend the ordinary meaning of those words as used in s. 5. It should not be necessary to say that this is not a proper way in which to state a case. All relevant findings of fact should be set out expressly and not left to be inferred by the appellate tribunal from the fact that an award has been made or that a question is asked whether there was evidence to support a finding of fact which is not itself set out as part of the case. (at p650)

2. By s. 8 (2) (a), an injury is to be "deemed to arise out of or in the course of his employment if the injury occurs while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment, is present at his place of employment or having been so present, is temporarily absent therefrom on that day during any ordinary recess and does not during any such absence voluntarily subject himself to any abnormal risk of injury". On this aspect of the case, the question is whether, on the facts as found, it was open to the Board to hold that when he was injured the appellant was temporarily absent from his place of employment "during an ordinary recess". The Full Court (Lowe, Dean and Pape JJ.) was of opinion that that ultimate finding was not open. Their Honours referred to and relied upon Drummond v. Drummond (1960) VR 462 in which it was said that s. 8 (2) (a) was "intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunchtime, or a 'smoko' or similar break normally referred to as a 'recess'. . . . The word 'recess' in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or 'smoko'. It is a period of rest incidental to a period of labour in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day (1960) VR, at pp 463, 464 ." With that statement we agree and, indeed, counsel for the appellant made no criticism of it. His submission was that, as applied to the facts of the present case, the interval between the last delivery of bread at Peterborough and the time "after lunch" or "in the afternoon" when the appellant would have been required to begin his work mixing dough could properly be regarded as a "recess" of the kind to which the judgment in Drummond's Case (1960) VR 462 referred. The argument seemed to us to proceed upon the basis that since the appellant was available for duty for twenty-four hours of the day, any break in that period, whether for sleep or food or for activities such as swimming, was a "recess" and that, if allowed as often as the appellant's swimming at Peterborough was allowed, it was an "ordinary recess". But that, we think, is unsound. The appellant was not working a continuous twenty-four hour day interrupted by relatively short breaks for refreshment or relaxation. During the substantial intervals of the day and night when he was not required to work, his time was entirely his own. He was off duty and could use his off duty periods for any purpose that he thought fit. The only effect of his getting the respondent's permission to go swimming was that a period was defined within which he would not be expected to be available for work at the bakery. It is unnecessary to attempt to define exhaustively the meaning of the words "ordinary recess" in the context in which they appear in the Act; it is sufficient to say that we agree with their Honours in the Full Court that the appellant's injury could not reasonably be held to have occurred during an "ordinary recess". (at p651)

3. The second conclusion upon which the Board based its award was that, at the time when the injury occurred, the worker was "travelling between his place of employment and his place of residence" within the meaning of s. 8 (2) (b) (i) and that the facts excluded the operation of the proviso to that sub-section. Here again it is only from the form of some of the questions asked that the Board's ultimate findings of fact on this question can be deduced. In our opinion the Board fell into error in applying s. 8 (2) (b) (i). It is plain that had the appellant been injured while travelling back from Peterborough to the bakery or during some interruption of or deviation from that journey other than an interruption or deviation to which the proviso applies, his injury would have arisen "in the course of" his employment within s. 5 (1). Had he been injured while going back to the bakery after delivering bread to customers at Peterborough and not while he was on a "venture of his own" he would have been entitled to rely upon that section. Such a journey would have been as much in the course of his employment as was the journey from the bakery to Peterborough, there to serve his employer's customers. But s. 8 (2) (b) (i) is not concerned with journeys "in the course of" a worker's employment which fall within s. 5 (1). It is designed to deal with cases in which the worker is travelling between his place of residence and his place of employment for the purpose of commencing work or of returning to his home after his work has finished. (See The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 particularly per Kitto J. (1956) 96 CLR, at pp 557, 558 ; Adcock v. The Commonwealth [1960] HCA 24; (1960) 103 CLR 194 ). For these reasons, which are in substance those given by Lowe and Pape JJ. in the Full Court, we are of opinion that it was not open to the Board to make an award in favour of the appellant based upon s. 8 (2) (b) (i). (at p652)

4. The appeal should be dismissed. (at p652)

WINDEYER J. By successive statutory amendments aided by a changing emphasis in judicial decisions the law of workers' compensation in Victoria, as elsewhere in Australia, has departed from the assumptions on which it was originally based. Originally an injury was only compensable if it had arisen out of and in the course of the worker's employment. That meant that a causal connexion between the employment and the injury was necessary, the foundation principle of compensation law as originally conceived being that industry, which in the long run meant the consumers of products and services, should bear the cost of accidents that should befall workers, and that this should be accomplished by requiring employers to insure against the liability to their workers that the Act created. But Australian legislatures altered the phrase "arising out of and in the course of employment" to "arising out of or in the course of employment". I used to think that the phrase "injury in the course of employment" itself embodied a notion of the employment as a necessary condition of the occurrence of the injury, and that it did not lose this element of its meaning by divorce from the companion words "arising out of". But a majority of this Court has decided otherwise: Kavanagh v. The Commonwealth (1960) 103 CLR 547 . To establish that an injury arose in the course of employment it is therefore enough now that it occurred when the worker was at work; or, in some cases, when he was on his way to or from work; and it is not necessary that the employment be otherwise in any way a contributing factor to its occurrence. (at p652)

2. In Henderson v. Commissioner of Railways (W.A.) [1937] HCA 67; (1937) 58 CLR 281 Dixon J. (as he then was) said: - "The general principle governing the ascertainment of the 'course of employment' appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. A number of them, taken from leading authorities, will be found in the judgment of this Court in Pearson v. Fremantle Harbour Trust [1929] HCA 19; (1929) 42 CLR 320 . Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties" (1937) 58 CLR, at p 294 . And see Humphrey Earl Ltd. v. Speechley [1951] HCA 75; (1951) 84 CLR 126, at p 133 . (at p653)

3. The application of this principle was often difficult, especially when an injury was received during a lunch-hour break or other similar interval in the working day: see e.g. Whittingham v. Commissioner of Railways (W.A.) [1931] HCA 49; (1931) 46 CLR 22 ; Davidson v. Mould [1944] HCA 10; (1944) 69 CLR 96 ; The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353 . In the Act with which we are here concerned the legislature has met the difficulties by making considerations of time and place decisive, in most cases, for determining what occurrences are within the course of employment. Thus s. 8 (2) of the Act provides that an injury is deemed to arise out of or in the course of employment if the injury occurs while the worker is present at his place of employment on a working day or, "having been so present, is temporarily absent therefrom on that day during any ordinary recess and does not during any such absence subject himself to any abnormal risk of injury". And the "'place of employment' shall, where there is no fixed place of employment, be deemed to include a reference to the whole area, scope or ambit of the employment" (s. 8 (3)). (at p653)

4. The critical question in this case is, therefore, whether the appellant was injured while he was temporarily absent from his place of employment during an ordinary recess. Shortly before he was hurt he had been delivering bread. While he was doing that it could be said that, there being no fixed place of employment, he was, like any other carter on his rounds, then at his "place of employment" as defined by the Act because within the scope or ambit of his employment. But he had finished his deliveries before the injury occurred and had gone swimming. Can it be said that he was doing so during an ordinary recess? That he was, in the well-worn phrase, "on a frolic of his own", is immaterial. The Act contemplates that a worker may leave his place of employment to frolic as he wishes during any ordinary recess, provided that in doing so he does not "voluntarily subject himself to any abnormal risk of injury"; and going swimming is not, of itself, taking an abnormal risk of injury: Taylor v. Stapley [1954] HCA 12; (1954) 90 CLR 1 . It is not necessary, in the view I take of this case, to decide whether on the facts it was open to the Board to decide that in diving into shallow water, as he did, the appellant was not taking an abnormal risk of injury. (at p654)

5. By "an ordinary recess", I take it, is meant a break or interruption of limited duration in the continuity of a normal working day, regularly allowed for meals or rest. The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. Recesses, variously called lunch-hours, tea breaks, smokos, stand-downs etc., are normal features of employment in many industries. They are ordinary recesses. It seems to me a misuse of words to say that the appellant when he was swimming was temporarily absent from his place of employment during an ordinary recess. (at p654)

6. An alternative proposition was that the injury to the appellant could be said to have occurred while he was travelling between his place of residence and place of employment. If that were so, then it would be deemed by the Act to have arisen out of and in the course of his employment. But that provision, which is directed to a state of facts altogether different from those of this case, assumes that the worker resides in one place and works in another and travels between them. Had the appellant been injured while returning to his employer's premises after having completed his deliveries, he would not have been travelling to his place of employment or from his place of employment so as to be deemed to be in the course of his employment: he would have been actually in the course of his employment. But not being required at the bakery until later in the afternoon he went swimming. When he was injured he could not in my opinion be said to be in the course of his employment in the ordinary sense of that expression nor within any of the extended and artificial senses given to it by the statute. (at p655)

7. I would dismiss the appeal. (at p655)

ORDER

Appeal dismissed.