The facts in this case highlight a further problem associated with the word `journey'. What if a worker's employment requires him or her to be constantly on the move. Should such a worker be regarded as constantly on a journey for the purposes of section 30(5)?

It would be odd if that were so because it would discriminate against such workers by limiting their access to the Act when there is no obvious reason why Parliament would intend to do so. It is one thing to isolate travelling away from the workplace and to treat such travel differently than activities undertaken at the workplace in respect of the scope of cover under the Act. It is another thing altogether to discriminate against a class of workers because their employment happens to involve continuous travel.

This leads me to conclude that such travel was not intended to be caught by section 30(5) such that ordinarily, a person whose job it is to travel about would not be regarded, whilst embarking upon such travel, to be on a journey for the purposes of the Act. If that person had finished for the day and was proceeding to travel to his or her home, that would be another thing altogether. But here, as the worker was `on the job', I would not regard his presence in the taxicab on the day of the fall, as indicating that he was in the course of a journey.

The issue then arises as to whether the worker's movements in leaving the taxicab and proceeding to the delicatessen in the Cosmos Shopping Centre, amounts to a journey. I made the point in Paparella (supra) `that this is very much a matter of impression'. At one extreme, if the worker had parked his car and walked a distance of a few metres to sit an adjacent park bench, and consumed some food that he had taken with him, I do not think that anyone would seriously suggest that in covering that distance, the worker was embarking upon a journey. On the other hand, if he had stopped his vehicle, with the intention of breaking for an extended period of time, had walked a distance and then caught a bus to a distant location with the intention of returning an hour or so later, one might far more readily come to the conclusion that in embarking upon that activity, the worker was involved in a journey as contemplated by section 30(5). In this instance, the worker was intending to traverse a distance of about 80 or so metres. He contemplated that he would be able to traverse the distance, purchase and consume food and be back in his taxi in sufficient time to drive to and collect a customer in under ten or so minutes. Applying what I hope to be a practical and common sense approach to this situation I do not think that he was involved in a journey for the purposes of section 30(5) at that time.

It follows that the worker's claim will succeed if the circumstances of his injury can be characterised as having arisen out of or in the course of his employment.

I am mindful of the danger of attempting to find a solution to this issue by reference to previously decided cases. It is sufficient to refer to the judgment of Lord Dunedin in Plumb v. Cobden Flour Mills Co Ltd. [1914] A.C. 62 at 65 where His Lordship said:-

`It is well in considering the cases, which are numerous, to keep steadily in mind that the question to be answered is always the question arising upon the very words of the statute. It is often useful in striving to test the facts of a particular case to express the test in various phrases. But such phrases are merely aids to solving the original question and must not be allowed to dislodge the original words. Most of the erroneous arguments which are put before the Courts in this branch of the law will be found to depend on disregarding the statuary rules. A test embodied in certain phrases is put forward, and only put forward by a Judge in considering the facts of the case before him. That phrase is seized upon and treated as if afforded a conclusive test for all circumstances, with a result that a certain conclusion is plausibly represented as resting upon authority which would have little chance of being accepted if tried by the words of the statute itself.'

Moreover, as the learned authors Hill and Bingman in the text `Principles of the Law of Workers Compensation, particularly in Victoria', Law Book Company (1981) observed at p.56:-

`The course of employment certainly does not run smooth. A bewildering maze of seemingly contradictory decisions faces the researcher.'

But that said, there are I think three cases that are worth citing. The first is St. Helens Colliery v. Hewitson [1924] A.C. 59 and in particular the judgment of Lord Wrenbury at p. 91 where he 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".'

The second is Danvers v. Commissioner for Railways (N.S.W.) [1969] HCA 64; (1969) 122 C.L.R. 529 where at p.536, Barwick C.J. said:-

`It has become apparent in Australia that what is in the course of an employment cannot be limited to what the employee is by the terms of his engagement express or implied contractually bound to do.'

The third is Hazimanolis v. A.N.I. Corporation Ltd. [1992] HCA 21; (1992) 173 C.L.R. 473 where at p.484, the majority said:-

`In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen'

In my opinion the worker's actions in proceeding to the shop to buy and consume some food immediately prior to collecting a booked fare was an entirely reasonable thing to have done and one which I think ought be regarded as a natural incident to his employment. At some time during the course of his shift, the worker had to eat. He would have been criticised if he had eaten in the taxicab. He had no alternative but to eat outside. True he could have brought his own food but it was scarcely a requirement of the job that he do so. The method by which the worker chose to purchase and consume some food was unlikely to have any adverse affect on the employer's business. Indeed the worker for that very reason chose it. The fact that events did not eventuate as expected does not change their character.

For these reasons I conclude that the fall and the injuries that resulted from it arose out of or in the course of the worker's employment with the employer. I therefore find that he sustained a compensable disability for the purposes of the Act. As the parties have not addressed me as to the quantum of the worker's entitlements I adjourn further consideration of this judicial determination to enable the parties to reach agreement as to the worker's entitlements or in default of their agreement, I will re-list the matter so that these issues can be determined.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.