Adcock v Commonwealth

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

In The Commonwealth v. Wright [1] the question was whether the respondent's son had been "travelling to " his employment when the accident which caused his death occurred. In the present case the appellant claims that he was "travelling from " his employment when the accident occurred. Inherently and in the abstract, the former expression is less difficult than the latter, but, in relation to members of the Defence Force who normally live, as well as carry out the duties of their employment, in a camp or in barracks or in a ship, both expressions give rise to very great difficulty. Both import the existence of some connexion between the travelling and the employment. The employment must be in some sense the occasion of the travelling. The conceivable circumstances of particular cases are so multifarious that it seems hardly possible to frame a single generalization which will express the necessary connexion and cover all cases that may arise. But there is a passage in the judgment of Kitto J. in Wright's Case [1] which seems to me to state correctly the general nature of the connexion that must subsist. His Honour, after analysing the language of the section, said [2] : "The common expressions "going to work" and "going home" convey the notions which stand in broad opposition to one another. Accordingly I should understand s. 9A (1) (a) to be referring only to personal injury by accident which is caused to an employee while travelling (in the defined sense) between a place at which he is to perform, or has been performing, duties of his employment by the Commonwealth and a place which is his place of abode, either permanent or temporary. This view accords with that which was taken by Napier C.J., in the Supreme Court of South Australia, on a similarly expressed section in the Seamen's Compensation Act 1911-1949 Cth. His Honour said: "It seems to me that "travelling to or from his place of employment" refers to a seaman who is joining his ship or going home. It may, perhaps, apply when a sailor is going on or returning from leave, and whether the place in which he spends his leave is his permanent home or a temporary residence, but it does not cover a seaman going to a race meeting, or to a public house for a drink, or, as in the present case, for a stroll ashore to post a letter": Davey v. Union Steamship Co. of New Zealand Ltd. [3] ."

1. (1956) 96 C.L.R. 536. 2. (1956) 96 C.L.R. 536 3. (1956) 96 C.L.R., at pp. 557, 558. 4. (1953) S.A.S.R. 35, at pp. 38, 39.

I think, with respect, as my brother Windeyer thinks, that even the statement quoted above may be found a little too narrow - at any rate, if we read the words "place of abode" as strictly equivalent to "dwelling-place". For a national service trainee in the Citizen Forces (who is, I should think, within the Act) might meet with an accident while travelling directly between his place of training and his place of civilian employment, and it might well be thought that such a case was a case of travelling to or from his place of employment by the Commonwealth. But no legitimate extension of the meaning of the term "place of abode" can help the appellant here. I do not think that his appeal could be allowed consistently with Wright's Case [1] and it should, in my opinion, be dismissed.

In The Commonwealth v. Wright [1] I expressed views as to the application of s. 9A of the Commonwealth Employees' Compensation Act 1930-1954 in the case of a member of the permanent defence forces who resides in a military camp or similar establishment and to whom personal injury by accident is caused while going to or from the establishment during a period when he is off duty and at liberty to pursue his own concerns. It may well be that the language I employed [1] to describe the "broad opposition" which I was concerned to maintain might with advantage have been less rigid. For example, I think on reflection that a part-time soldier going from his civil employment to a military parade would be travelling to his employment by the Commonwealth in the sense of the Act. But that, I think, would be because his living away from his place of military employment divides his life into opposed compartments geographically separated, so that moving from the one to the other satisfies the notion of a "travelling" to or from his employment by the Commonwealth. The ideas which I was endeavouring to express in Wright's Case [2] I have seen no reason to alter, and in the present state of judicial opinion I think I may properly adhere to them.

1. (1956) 96 C.L.R. 536 2. (1956) 96 C.L.R., at p. 557. 3. (1956) 96 C.L.R. 536.

The appellant, who at all relevant times was a member of the permanent air force, appeals by special leave from a decision of the Magistrate's Court in Queensland dismissing his appeal from the determination of the Delegate of the Commissioner for Employees' Compensation disallowing his claim for compensation made under the Commonwealth Employees' Compensation Act. Special leave was sought and granted following Martin v. Commissioner for Employees' Compensation [3] and Goward v. The Commonwealth [4] .

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

In The Commonwealth v. Wright [1] the application of the Act to members of the defence forces of the Commonwealth was examined, and the difficulties occasioned by including members of the defence forces in the description of employees of the Commonwealth were exposed. The present case again demonstrates how inappropriate it is to attempt to apply to sailors, soldiers and airmen who are bound to continuous service during the continuance of their engagement and who are often called upon to live in ships, in camps or upon stations, an Act framed to deal with civilian employment where an employee is either on duty or off duty. Presumably a sailor "off watch" or "of the watch below" asleep in his hammock, would be entitled to compensation if he suffered injury upon being thrown to the deck by the violence of a collision; and how would a sailor stand if, when off duty, he went ashore in a foreign port and was permanently incapacitated in a motor collision or by the assault of thugs? Would such a sailor be in the course of his employment, notwithstanding that he was on leave and away from his ship, and to that extent off duty? If so, he would be entitled to employees' compensation; if not, it seems he would be entitled to nothing: s. 14 (2) of the Act.

The fact that members of the permanent naval force, the active permanent military force and the permanent air force are bound to continuous service during the continuance of their engagement would afford some ground for treating the appellant, being as he was a member of the permanent air force, as "in the course of his employment by the Commonwealth" when he was injured in the interval between stand down and starting work. This submission, however, was not made because it was properly thought to be contrary to the decision in The Commonwealth v. Wright [1] where McLean, whose death while travelling to the military camp at Bandiana gave rise to the claim, was a member of the permanent military force. For the appellant, it was contended that he was travelling from his employment by the Commonwealth when he was injured, but it seems to me that The Commonwealth v. Wright [1] is also conclusive against the submission which the appellant does make. In that case where, as I have said, McLean was travelling to the camp at Bandiana where he was stationed, Fullagar J. said: "It is, I think, a fair enough inference that he was on his way to the camp at Bandiana. But that is not enough. It is not made to appear that his immediate purpose in going to the camp was to enter upon the duties of his employment" [1] . Likewise, Kitto J. said: " his presence within the confines of his camp, by his own choice, during a period when he is off duty and is free to go where he wishes, is not enough to show that he is then in the course of his employment. Consequently, when he is going to the camp at a time which is prima facie unrelated to the resumption of his duties at the termination of his leave, it seems to me impossible to conclude, if no more is known, that he is then travelling to his employment" [2] . Here the appellant had concluded the duties of his employment in the sense used by their Honours in the quotations I have just made before he went to the park to repair his friend's motor car. He had stopped work and was not due to start again until 7.40 the next morning, and during the intervening time he was off duty and free to go where he wished. In the judgment of the minority in Wright's Case [3] , McLean was "travelling to his employment" by proceeding to his camp where on arrival he would at once have been under military discipline, but this view did not prevail and its rejection in that case involves the conclusion in this case that the appellant was not travelling from his employment when he left Amberley to travel to Brisbane. The decision in Wright's Case [3] denies that a member of the permanent forces is in the course of his employment by the Commonwealth when he is off duty; it decides that when no more appears than that such a member is travelling to or from the camp where he lives and works, it cannot be concluded that he is travelling to or from his employment by the Commonwealth; and for the purposes of s. 9A it confines the conception of "employment by the Commonwealth" to or from which he travels to the work that it is the duty of such a member to perform. That decision means that this appeal must fail.

1. (1956) 96 C.L.R. 536. 2. (1956) 96 C.L.R. 536. 3. (1956) 96 C.L.R., at p. 554. 4. (1956) 96 C.L.R., at p. 562. 5. (1956) 96 C.L.R. 536. 6. (1956) 96 C.L.R. 536. Windeyer J.

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

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

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

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

The decision of this Court in The Commonwealth v. Wright [1] was much discussed in argument, but I do not think it really determines the present case. Kitto J. said there that s. 9A (1) (a) is to be understood as "referring only to personal injury by accident which is caused to an employee while travelling (in the defined sense) between a place at which he is to perform, or has been performing, duties of his employment by the Commonwealth and a place which is his place of abode, either permanent or temporary" [2] . The Chief Justice, however, pointed out that the legislature had deliberately removed from the definition of "travelling" all reference to the place of abode. He concluded therefore that "the problem cannot be answered by devising a terminus a quo or a terminus ad quem by implication" [1] . McTiernan J. agreed and said that the abode of the employee "cannot be supplied by implication as the starting or finishing point" [2] . Webb J. and Fullagar J. did not have to make any pronouncement on this aspect. Their view was that it did not appear from the facts of that case that the deceased soldier's purpose in going back to camp on Saturday night, when he had local leave until Monday morning, was to enter upon the duties of his employment. Therefore he was not, they considered, shown to have been travelling to his employment within the meaning of the section. Kitto J. adopted this view of the facts as a second ground for rejecting the claim in that case. I am, with respect, unable to accept without some qualification the precise form in which Kitto J. stated his first ground; for I respectfully agree with the Chief Justice that, Parliament having deliberately removed the place of abode as one terminus of the journey, the Court should not restore it by implication. Moreover, to limit journeys falling within s. 9A to those between place of employment and place of abode, permanent or temporary, would, in my opinion, too greatly restrict its operation; for, as I have said above, some employees of the Commonwealth, especially part-time employees such as members of the Citizen Forces, often set out for the places of their employment by the Commonwealth from places other than their abodes. But I do agree entirely with what I take to be the underlying assumption of the view of Kitto J., namely that s. 9A can only apply when the employee has a place of abode temporary or permanent away from his place of work. It cannot, I think, have any application in the case of an employee who is required to "live in" at his place of employment while he is in fact living in. The expressions "shortest convenient route for the journey", "substantial interruption" or "substantial deviation" can have no sensible meaning in such a case. An excursion made by a man living at his place of employment for the purpose of going to the pictures in his hours off duty is not related or incidental to his employment. It is not comparable with the journey that an employee living at home makes to get to his work or to go home from his work. And it is not comparable with the journey that a man on being posted to a particular place has to make to take up his duties there. It is comparable rather with an excursion that for his own purposes an employee living at home makes in the evening after he has got home. In Davey v. Union Steamship Co. of New Zealand Ltd. [3] , Napier C.J., in the passage to which my brother Fullagar has referred in his judgment, expressed the distinction in the case of a seaman. The same considerations should, I think, govern all cases where a Commonwealth employee is, as a condition of his employment, required to live on the premises where he works - whether he be, for example, a domestic servant in a government hostel, a seaman on a ship, a soldier in barracks or an airman quartered at the station where he performs his duties. It is not really necessary that I say any more, because I think s. 9A could have no operation in the present case, the appellant being at the time of the accident an airman quartered in barracks. But counsel for the Commonwealth expressly refused to accept this proposition when invited to do so. So I shall add some observations on some of the arguments that he pressed upon us.

1. (1956) 96 C.L.R. 536. 2. (1956) 96 C.L.R., at p. 557. 3. (1956) 96 C.L.R., at p. 544. 4. (1956) 96 C.L.R., at p. 548. 5. (1953) S.A.S.R. 35.

It was suggested that the effect of Wright's Case [1] is that an employee living-in can, when returning from an excursion in off-duty hours, be travelling to his employment, if the immediate purpose of his return is to resume duty. I do not think that this follows from that decision. And I find much difficulty in the idea that the immediate purpose or intention which the employee has in mind rather than the place to which he is going can be decisive of whether or not he is travelling to his employment. That difficulty is not lessened by the suggestion that that purpose or intention is to be determined by an inference drawn from the period of time which would elapse between the expected time of arrival at the place of employment and the hour when he was to go on duty. When, as here, the meaning of travelling from employment as distinct from travelling to employment is in question, the fallacy of the suggested approach becomes the more apparent. It was said on behalf of the Commonwealth that if the appellant had gone straight to the pictures from the very part of the station where he was when he ceased work he would have been travelling from his employment. But going to the car park and there working on his friend's car for about half-an-hour before leaving for Brisbane, it was said, made all the difference. The appellant when walking from the part of the station where he was at stand-down to the car park was, it was said, travelling from his employment, but this journey ended at the car park. But such distinctions as were urged are remote from reality. A soldier who is dismissed on the parade ground is not travelling from his employment when he goes to his lines. A naval rating going from his duties to the mess deck could not be said to be travelling from his employment. And, if he were a liberty man, would his position ashore be different because he had not gone in the first liberty boat but had remained aboard for a time for some purpose of his own? Such considerations as these strengthen me in my conclusion that s. 9A has no application to excursions in off-duty hours by employees who under the terms of their engagements live in. I may add that a corollary of the non-application of s. 9A is that, even when off duty, such employees are still within the sphere of their employment while on their employer's premises, even though they be free to go out if they wish. An injury to them there will be prima facie within the course of their employment under s. 9. This, I think, follows from what has been said in cases relating to persons in continuous employments, such as seamen and domestic servants: Northumbrian Shipping Company, Limited v. McCullum [1] and Weaver v. Tredegar Iron and Coal Company, Limited [2] . If, however, such an employee does go out for his own purposes, he is not within the course of his employment while he is out (Charles R. Davidson & Co. v. M'Robb or Officer [3] ). A man who although living in accommodation provided by his employer has no duty to do so is, of course, in a different position (see Philbin v. Hayes [4] ; Alderman v. Great Western Railway Company [5] ). Every case depends upon its own facts. But ordinarily members of the services who are serving in a ship or quartered in barracks or camp live there because of the nature of their employment, even though they might have had permission to live out had they wished. The ship to which a sailor belongs, the camp or barracks where a soldier is stationed is not just the place where he works or the place where he is given board and lodging. Once a sailor comes aboard, once a soldier passes the quarter-guard, he becomes and remains subject to the discipline of his ship or station, whether he goes on duty forthwith or becomes a member of the watch below or is off-duty in his lines. It is especially clear that men in the services are, while within the precincts of their establishments, within the sphere of their employment. The question in this case arises, however, because the appellant lived where he worked, not because he was a member of the Air Force. But I do not overlook that, as members of the Court pointed out during the hearing, special difficulties arise in applying the Act to members of the Navy, Army and Air Force. In peace time the position of a member of the forces whose duties are those of a tradesman rather than a combatant is, for practical purposes, in many ways not unlike that of any other Crown employee performing similar tasks. In a legal sense it is, however, essentially different. The serviceman who does not perform his duty, or who leaves his employment, does not just break a contract. He commits an offence. He can be apprehended and forcibly brought back to his duty. The resemblances between a man living in accommodation provided by his employer at or near the place of his work - a worker in a construction camp for example - and a member of the services can blur the fundamental distinction between their positions in law.

1. (1956) 96 C.L.R. 536. 2. (1932) 101 L.J. (K.B.) 664; (1932) 48 T.L.R. 568. 3. (1940) A.C. 955. 4. (1918) A.C. 304. 5. (1918) 87 L.J. (K.B.) 779. 6. (1937) A.C. 454.

Fullagar J. in Wright's Case [1] speaking of members of the defence forces said: "In effect they live in the place where the duties of their "employment" are performed: they do not travel regularly to and from their employment. It does not, of course, follow that they are excluded from any benefit under s. 9A. They will from time to time go on leave, and return from leave" [2] . It was sought to apply this statement here - by saying that the appellant was on leave and was travelling from his employment to the Temperance Hall in Brisbane, the destination he had in view. But freedom to go out at the end of the day's work is not going on leave in any relevant sense. Leave for this purpose means periods of furlough, annual recreation leave, special leave and so forth, as provided for in the case of a member of the Air Force by Air Force Regulations, regs. 120-150. During such leave an employee who was living-in is for the time living elsewhere. In the services the distinction is between "local leave", given generally to all men off-duty at the end of the day's work, and, leave of absence, given to an individual for a period during which he would not be counted as present with his unit. In the report in Wright's Case [3] the deceased soldier is said to have been on local leave. He was in fact entitled to go anywhere within a hundred miles of his camp at Bandiana - so much easier has travel, and so much lighter has discipline, become since the one mile limit in the eighteenth century articles of war (see Simmons on Courts Martial 7th ed. (1875) p. 85). But whether or not a man has leave so that he can when setting out be said to be travelling from his employment is a question of fact. It does not depend upon any esoteric doctrine of military law. It is the difference between a domestic servant's day off and her annual holiday. It may be that in some circumstances an employee living-in could, when going away for the week-end, be said to be travelling from his employment, although a man who stays away for a night or two has not necessarily changed his abode. But in the present case the appellant's excursion involved no alteration, even temporarily, of his place of abode and his position as a living-in employee. He was not, in my view, travelling from his employment when he was injured. The appeal should, I consider, be dismissed.

1. (1956) 96 C.L.R. 536. 2. (1956) 96 C.L.R., at pp. 553, 554. 3. (1956) 96 C.L.R. 536.