Commonwealth v Hollis [1968] HCA 79; (1968) 118 CLR 305 (6 December 1968)

HIGH COURT OF AUSTRALIA

THE COMMONWEALTH v. HOLLIS [1968] HCA 79; (1968) 118 CLR 305

Workers' Compensation

High Court of Australia
McTiernan(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(5) JJ

CATCHWORDS

Workers' Compensation - Commonwealth employees - Member of Regular Army - Stationed in camp - Off duty - Excursion from camp - Injured on return journey - Intention to sleep at camp and to do some work before time required to resume normal duty - "Travelling to or from his employment" - Commonwealth Employees' Compensation Act 1930-1967 (Cth), s. 9A.

HEARING

Sydney, 1968, November 7; December 6. 6:12:1968
APPEAL from the Metropolitan District Court, Sydney, New South Wales.

DECISION

December 6.
The following written judgments were delivered:-
McTIERNAN J. In view of the decision of a majority of the Court in Adcock v. the respondent is entitled to compensation under s. 9A (1) of the Commonwealth Employees' Compensation Act 1930-1967 (Cth). But I am not clear whether that result should be reached for the reasons that the soldier was living in at the camp and therefore not covered by s. 9A(1), or, that at the time he was injured he was not travelling "to his employment". However, I think that the decision in Adcock's Case (1) of Dixon C.J. on the interpretation of s. 9A(1) is right, also in the case of The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 . In the earlier case I wrote a judgment concurring with that of Dixon C.J. I regret that I am not free in the present case to apply the reasoning of the minority in these two cases. I think therefore that the appeal must be allowed. (at p306)

TAYLOR J. It is impossible to discover any material distinction between the circumstances of this case and those the subject of consideration in Adcock v. The Commonwealth [1960] HCA 24; (1960) 103 CLR 194 . In that case a majority of this Court held that s. 9A of the Commonwealth Employees' Compensation Act 1930-1956 did not apply in the case of an employee - a leading aircraftsman in the Royal Australian Air Force - who was quartered, that is to say, "living in", at his place of employment and who was injured whilst travelling in a motor vehicle between the place where he was quartered and the picture theatre to which he and a companion intended to go. It is beyond question that the basis of the decision in that case is fatal to the respondent's contentions in the present case. Accordingly, in my view, the appeal should be allowed. (at p306)

MENZIES J. In Adcock v. The Commonwealth [1960] HCA 24; (1960) 103 CLR 194 , three Justices of this Court - Fullagar, Kitto and Windeyer JJ. decided that s. 9A(1) of the Commonwealth Employees' Compensation Act 1930-1956 did not apply to a Commonwealth employee who is required to and does "live in" at his place of employment while he is so living in. I, although one of the majority, did not share that view of the section but the case was so decided and ought not now to be reconsidered. (at p307)

2. In this case the respondent, the worker claiming compensation, was, at the time he was injured, a Commonwealth employee answering the foregoing description. He lived and worked at the Puckapunyal Camp; he left the camp on the evening of Saturday, 4th September 1965, to attend a dance at Tooborac, some twentyfive miles away; he was injured while driving his car back to the camp shortly after midnight in order to sleep there. (at p307)

3. Accordingly, the award in his favour made by the District Court judge should not have been made. The appeal must be allowed. (at p307)

WINDEYER J. Section 9A of the Commonwealth Employees' Compensation Act 1930-1967 has again led to a dispute. The problems of applying this provision to employees living at their place of work who make excursions during off-duty hours have been remarked on in other cases. Dixon C.J. in 1960 described the section as a "much criticized piece of drafting" and as "this notoriously contentious statutory text". Other members of this Court, although not always agreeing as to the effect of the section in particular facts, have expressed similar strong criticisms of it. But Parliament has remained unmoved by judicial condemnations of its work. We have again to deal with the difficulties of applying to members of the armed services on full-time duty provisions primarily designed to meet the circumstances of civilians living at home and going to work each day. The Act is expressly made to apply to some members of the Defence Forces, but not to all: see ss. 4A, 14, 17A. It applies to members of the Regular Services, whether voluntarily enlisted or conscripted, and also to members of the Citizen Forces when on duty. It seems to me that special difficulties and anomalies could arise in the case of members of the services in overseas postings. I mention these matters because the wide operation of the Act - over both persons and places - makes it desirable in every case to confine attention to its facts. General statements in judgments in other cases can prove, indeed have proved, to be misleading. Nevertheless, I think that this case is governed by the decision in Adcock's Case [1960] HCA 24; (1960) 103 CLR 194 . For my part I adhere to the opinion I expressed there (1960) 103 CLR, at p 210 that, "Section 9A can only apply when the employee has a place of abode temporary or permanent away from his place of work. It cannot, I think, have any application in the case of an employee who is required to 'live in' at his place of employment while he is in fact living in". I shall not repeat here my reasons for that conclusion. I am strengthened in it by considering the effect of s. 9A in a case to which s. 9A could apply - that is the case of an employee not "living in", which is not this case. The word "travelling" in the section postulates a moving from place to place; and the phrase "to or from his employment" predicates of such movement that it has a beginning ("from") or an intended end ("to"). The beginning and end of the man's travelling is then described by reference rather to purpose than to place - the purpose being either to take up or resume the work he is employed to do, or for the time being to leave it behind him. The section seems to me to deal with persons who are on their way to or from their work or duties. Presumably the word "work" was too common, and the word "duty" too proud, for the draftsman. He did not call the servants of the Commonwealth workers or servants. They are instead employees. Nevertheless the policy and concepts which the phrases of the Act embody are obviously derived from workmen's compensation legislation. A provision such as s. 9A bringing travelling to and from work within the course of a man's employment for the purposes of compensation for injury is now a commonplace provision in such legislation. (at p308)

2. The essential facts of the present case are that the respondent, who was the applicant for compensation and whom I shall call the applicant, was seriously hurt in a motor-car accident while he was in the service of the Commonwealth as a soldier in the Australian Regular Army. He was a corporal in the 1st Armoured Regiment. He was serving with his unit which was then stationed in the camp at Puckapunyal in Victoria. This "camp" is not a temporary encampment. It is, as places so described in Australia often are, a permanent military establishment with buildings, in an area where troops are stationed for periods of training. (at p308)

3. The applicant was not rostered for any duty on Saturday, 4th September or Sunday, 5th September 1965. In accordance with the normal custom of the camp or of his unit, he was at liberty to go to and fro from camp as he wished during those days, indeed from any time after stand-down at 1630 hours on the Friday. For local leave he needed no pass, but for going beyond twentyfive miles from the camp a leave pass was necessary. As he had in mind going to a dance in Bendigo on the Saturday night he had obtained a leave pass valid at any time from midnight on Friday to midnight on Sunday. He remained entitled to rations and quarters at the camp and continued to live there. He was, I assume, counted throughout as on the effective strength of his unit, although it seems not bound to be present at any roll-call on the Saturday or Sunday. The roll-book of his squadron was called for in the Court below but was not produced: it was said to be missing. On the Saturday he went out for a short time, came back to the camp, did some clerical work which he had to attend to in the regimental transport office, and had his meals in his mess. Then on Saturday night he went by his car to a dance at Tooborac, about twenty-five miles from the camp. Another soldier, a comrade in the regiment, was with him. They had decided to go to the dance at Tooborac instead of to Bendigo as at first planned. They left Tooborac about midnight to return to camp. On their way back the accident occurred. The car went off the road. The applicant was hurt. His comrade was killed. (at p309)

4. The only question in the case is whether the applicant was at the time of the accident, "travelling to or from his employment by the Commonwealth" within the meaning of s. 9A. He was going back to his quarters to sleep. He says that he had intended to complete on the Sunday morning certain returns concerning the running of the regimental vehicles which it was his duty to prepare and render to his superiors. The work had to be done. The sergeant who would normally do it was away from the unit. In his absence it was the duty of the applicant to do it. And although he was not rostered for duty on the Sunday, he was bound by the ordinary oath of a soldier on enlistment, that . . . in all matters appertaining to his service he would faithfully discharge his duty according to law. But, as I see the case, the applicant's intentions to do at the camp whatever duties awaited him there do not mean that when returning there, the place where he lived, he was travelling to his employment within the meaning of s. 9A. The decision in Adcock's Case [1960] HCA 24; (1960) 103 CLR 194 , compels the conclusion that he was not; for he, a living-in member of his unit, was not a person to whom s. 9A could apply. (at p309)

5. I should add, because of some matters discussed in argument, that whether a man lives in at his place of work is a question of fact. If he be, for example, a soldier in camp or barracks, as the applicant was, his sleeping quarters and mess room are quite likely to be in some building separate from the office, parade ground or other place where his duties are performed. They may be some distance away. But none the less he lives where he works, and s. 9A does not apply to him. When going from his quarters or mess room in one part of the barracks, camp or similar establishment to his post of duty in another part, he is not travelling to his employment, and thus deemed to be in the course of his employment. He is actually in the course of his employment - or so it seems to me. This I think would provide an answer for some hypothetical and seemingly anomalous cases suggested during the argument. It is not necessary to deal with them, for in the light of Adock's Case [1960] HCA 24; (1960) 103 CLR 194 they cannot make s. 9A applicable in this case. It is, however, I think pertinent to notice that s. 9A takes over only where s. 9 leaves off. Dixon C.J. reached a conclusion different from that of the majority in Adcock's Case (1960) 103 CLR 194 ; but his Honour's observations on this point are pertinent. He said (1960) 103 CLR, at p 199 , "I think that it may be said with some confidence that whatever otherwise may be the operation of s. 9A it was intended that the potential right to compensation it confers upon the employee should attach where that given by s. 9 (1) ceases or ends". I respectfully agree. Section 9A gives an employee a right to compensation for an injury caused to him while travelling "as if the accident were an accident arising out of or in the course of his employment". When an accident does in fact arise out of or in the course of employment s. 9A need not be, indeed cannot be, resorted to, for s. 9 (1) then applies. The course of a man's employment is a wide concept. "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." That was said by Dixon J., as he then was, in Henderson v. Commissioner of Railways (W.A.) [1937] HCA 67; (1937) 58 CLR 281, at p 294 . I need not quote further, although the whole passage would be relevant in some of the situations imagined during the argument in this case. (at p310)

6. In short, it is I think a mistake to suppose that a man in the services who is injured when off duty is necessarily outside the scope of the Act. If he be injured when in his ship, barracks or camp he may have been there in the course of his employment although not at the time performing any particular task. Also, some travelling to duty which is not within s. 9A can be in the course of employment within s. 9. For example, take the case supposed of a member of the ship's company of a vessel in the navy, or a living-in member of an army unit, who in off-duty hours is abroad in town. Because of some emergency he is recalled to duty, ordered to return and report to his unit forthwith or to repair on board immediately. In the course of doing so he is injured by accident. He would, in my view, be entitled to compensation - not by virtue of s. 9A, for it does not apply to him, but by virtue of s. 9, for when injured he was acting under orders and in the course of his employment. However, this case is unlike anything of that sort. (at p311)

7. In my opinion the appeal must be allowed. I would not make any order as to the costs of the proceedings here or in the Court below. The Commonwealth's appeal has succeeded; but I do not think the respondent should be ordered to pay its costs. The language of the statute does not fit easily with the customs and conditions of naval and military service; judicial dicta have not all been consistent; and the decision of his Honour in the Court below might seem to get support from some passages in judgments in this Court. I would simply allow the appeal and restore the decision of the Delegate of the Commissioner. (at p311)

OWEN J. This is an appeal by the Commonwealth from a decision of McIntosh D.C.J. exercising jurisdiction under s. 20 of the Commonwealth Employees' Compensation Act 1930-1967 by which his Honour upheld an appeal by the present respondent against a determination of the Commissioner for Employees' Compensation dismissing the respondent's claim for compensation based upon s. 9A (1) of the Act. That sub-section imposes an obligation to pay compensation where a Commonwealth employee - which, with certain exceptions not material in the present case, includes a member of the Defence Forces - suffers personal injury by accident while "he is travelling to or from his employment by the Commonwealth", and, by sub-s. (2), "travelling" is defined to mean "travelling by the shortest convenient route for the journey" but "does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the employee's employment . . ." unless it is considered by the Commissioner that in the circumstances of the particular case the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of such interruption or deviation, in which case he may, on behalf of the Commonwealth, accept liability. (at p312)

2. In The Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 and again in Adcock v. The Commonwealth [1960] HCA 24; (1960) 103 CLR 194 this Court had to consider whether the section could be applied in the case of an employee who lives at his place of employment and who sustains personal injury in the course of a journey, made while he is off duty and for his own purposes, to or from the place where he both lives and works. This is such a case. The respondent was a member of a unit of the Regular Army stationed at the Puckapunyal Camp. He was granted week-end leave from midnight on Friday, 3rd September 1965 to midnight on Sunday, 5th September 1965. He remained in camp on the Friday night and, after doing some hours' work in the Camp Transport Office on the Saturday morning, he went at about 10.30 or 11 o'clock to the neighbouring town of Seymour where he had his hair cut and made some bets at the Totalizator Agency. He then returned to the camp where he had his lunch and slept for a time. In the evening he drove in his car to a dance which was being held some miles away and at about midnight set off to return to the camp by the shortest convenient route. On the way his car ran off the road and he was injured. His intention was to return to the camp there to sleep and have breakfast and then complete the work which he had been doing on the Saturday morning in the transport office. (at p312)

3. I am unable to find any relevant distinction between this case and Adcock's Case [1960] HCA 24; (1960) 103 CLR 194 and the judgments of Fullagar, Kitto and Windeyer JJ. in that case seem to me to determine the matter against the respondent. The case is not one in which a member of the Forces living in barracks or in a military camp has during a period of leave temporarily taken up residence away from his place of employment and for the time being ceased to be a living-in member of his unit. The respondent here in fact remained a livingin member of his unit throughout the week-end notwithstanding the fact that, if he had wished to do so, he could have absented himself from the camp and temporarily lived outside it for the period of his leave. In these circumstances, the majority decision in Adcock's Case [1960] HCA 24; (1960) 103 CLR 194 seems to me to compel the conclusion that when the respondent was returning from the dance he was not, in any relevant sense, travelling to his employment any more than he was travelling to it when he was returning to the camp from Seymour on the Saturday morning after visiting the hairdressing shop and the Totalizator Agency there. (at p313)

4. I would allow the appeal. (at p313)

ORDER

Appeal allowed with costs. Order of the District Court discharged and, in lieu thereof, order that the appeal to that Court be dismissed with costs.