McTIERNAN J. This case was an application by the respondent for an award of The application was based upon s. 7 (1) (a) of the Act. It is not disputed here that at the time of injury the respondent was a worker in the employment of the appellant. Under s. 6 (1) "injury" means personal injury arising out of or in the course of employment. The only issue between the parties was whether the applicant received an injury in the course of his employment. The Workers' Compensation Commission decided that issue against the applicant. Pursuant to s. 37 (4) of the Act he requested the Commission to state a case for the decision of the Court of Appeal. By s. 37 (4) the Court is limited to questions of law. The question referred to the Court was whether on the facts found by the stated case the Commission was bound in point of law to find that the injury in question arose in the course of the applicant's employment. The Court of Appeal decided the question in favour of the applicant (1971) 1 NSWLR 547 . With respect I do not think that the decision of the Court is right. (at p148)

2. Taking the facts which appear from the stated case as originally drafted and supplemented at the request of the Court of Appeal, I would be of opinion that this material strongly supports the conclusion of the Commission. But my reasons for deciding that the Commission did not err in law are as follows. The burden of proof was upon the applicant. At the time of injury he was not working. In fact he was then running away from his place of employment. But he did not stop work to run away. When he did so his employment was already interrupted by a quarrel between him and O'Neill about a matter that had nothing to do with his employment. The flight of the applicant from his place of employment was a sequel of the quarrel. An injury received by a worker in the course of an event which is an incident of his employment could be an injury arising in the course of the employment. Even if I thought it was unreasonable, having regard to the material before the Commission, to find that the applicant's flight was not an incident of his employment, I could not give effect to that view by deciding in the applicant's favour, because it is not a question of law whether or not the decision of the Commission was unreasonable. The Commission is the tribunal of fact and this Court, like the Court of Appeal, is by s. 37 (4) of the Act limited to questions of law : Clark v. Flanagan [1934] HCA 73; (1934) 52 CLR 416 . (at p148)

3. I would allow the appeal and order that the question in the stated case be answered "No". (at p148)

MENZIES J. The respondent, Bill Williams, was employed as managing director by his own one-man company, Bill Williams Pty. Ltd., at its premises in Bega. He was a worker for the purposes of the Workers' Compensation Act, 1926 (N.S.W.), as amended. On 14th March 1967 an injured and irate husband, one O'Neill, came to the company's premises to vent his wrath upon Williams on account of some relationship between him and O'Neill's wife. Words were exchanged and O'Neill assaulted Williams. O'Neill then went away but soon returned with a rifle. Further words were exchanged and O'Neill threatened to emasculate Williams by rifle fire. Williams ran from the premises into the street. While he was running in the street O'Neill shot him in the back. Williams claimed workers' compensation from the appellant for the injury so received. (at p149)

2. Judge Wall, a member of the Workers' Compensation Commission of New South Wales, decided that the worker had failed to establish that the injury so received had been received in the course of his employment and made an award in favour of the employer. The learned judge stated a case asking whether, on the facts found by him, he had erred in holding as he did. The Court of Appeal of the Supreme Court of New South Wales answered this question affirmatively (1971) 1 NSWLR 547 . It is from that decision that this appeal has been brought. (at p149)

3. The determination of the matter has, I think, been complicated by the course followed in the Court of Appeal. The learned judge had found inter alia :

"(e) After the preliminary assaults the applicant became

aware that O'Neill was armed with a rifle and took

flight from the premises where these incidents occurred.

(f) In fleeing from the treatened use of the gun and from

the offers of violence of O'Neill the applicant was shot.

(g) The applicant had emerged from the respondent's

premises at the time when he was shot.

(h) That the applicant was in the course of flight from the

employment."

When the case stated came on for hearing the Court of Appeal considered that the findings of fact in that case were insufficient for its purposes and asked questions and received answers as follows from the Workers' Compensation Commission :

"Question 1 : Whether the appellant was in the course of

his employment at the time when O'Neill arrived at the

respondent's premises.

Answer : Yes.

Question 2 : If the answer to (1) is 'yes' whether between

that time and the time of the injury the course of the

employment

was interrupted and if so by what ; and on matters of

fact relevant to these questions.

Answer : The course of employment was interrupted, firstly,

by the discussion between the appellant and O'Neill near the

drum and, secondly, by the further discussion after the appellant

had spoken to Charles Innes. This latter interruption

continued

up to the time when the appellant received injury on

the footpath outside the respondent's premises."

These questions and answers were then treated by the Court of Appeal as incorporated in the case stated. Upon the case stated coming on again it was observed that the answer to the second question, taken with the earlier findings of fact, required elucidation and it was, to use the language of Asprey J.A., "agreed that some explanation should be given to clarify the answer to question 2". Resort was had to the transcript, which was not part of the case stated, to afford this explanation. Asprey J.A. stated the explanation so derived as follows (1971) 1 NSWLR, at p 549 :

"The drum therein referred to was a piece of equipment

situate on the respondent's premises which was being welded

by the applicant as part of the duties being performed for his

employer. The man Charles Innes was a customer of the

applicant's employer who called at the employer's premises

and who was present thereat during part of the incidents

related in the case stated. It is also agreed that par. 5 (g) of

the case stated should be understood as meaning that the

bullet fired by O'Neill from the respondent's premises struck

the applicant at a time when the applicant, in fleeing from the

threatened use of the gun (par. 5 (f)), had reached the public

footpath immediately adjoining the respondent's premises." (at p150)

4. It should also be stated that it was agreed that in par. 5 (h) of the case stated the word "employment" should be understood as meaning "the place of his employment". Mason J.A. took from the transcript of evidence facts which he summarized as follows (1971) 1 NSWLR, at p 554 :

"It is sufficient to summarize what appears in the transcript

by saying that O'Neill first commenced to take exception to

the appellant's activities with O'Neill's wife and to threaten

the appellant with a pick or hammer when O'Neill approached

the appellant when he was working on a drum in the yard of

the respondent's premises. In the course of that discussion

the appellant asked O'Neill to cease kicking the drum as it

was interfering with the work that he was doing. This

discussion

terminated when the appellant left the yard and

picked up a rifle which he had in a vehicle outside the premises.

Meantime the appellant began to speak with a customer

named Charles Innes, when O'Neill returned, interrupted the

conversation with Innes, and announced that he proposed to

shoot the appellant. After he commenced to assault the

appellant, the appellant fled and in the course of his flight

sustained a gunshot wound in the back at the hands of

O'Neill." (at p151)

5. It is to be observed that their Honours, in the Court of Appeal, may not have reached their decisions upon precisely the same so-called findings of fact, for the summary which I have taken from the judgment of Mason J.A. attributes to Williams nothing but flight upon O'Neill's return with the rifle, but this is hardly consistent with the express finding that there was then discussion between Williams and O'Neill. (at p151)

6. Upon the whole, in the somewhat unsatisfactory circumstances that have eventuated because of a natural desire to avoid delay and expense, it is, I think, necessary to confine what might be taken from the transcript of evidence to what was necessary to make comprehensible the answer to the second question. This, I think, was done by Asprey J.A., but not by Mason J.A. who, it seems to me, used the transcript as evidence of what took place. Accordingly the critical finding that is to be derived from the case stated, as expanded by the second question and the answer thereto, is no more than that there was, when O'Neill returned with the rifle, a discussion which the learned judge found interrupted the course of Williams' employment. There is no finding about what either party to the discussion said and there is no point that there was no evidence to support the finding that there was a discussion. The finding that there was a discussion is one of fact ; the conclusion that it interrupted the course of Williams' employment is one of law. Here, perhaps, it should be recorded that the concept of an interruption to the course of Williams' employment did not originate with the learned judge ; it is to be found in the interrogation of the Commission by the Court of Appeal. The answer followed the question. (at p151)

7. There is no doubt that a discussion of a private matter between a worker and a third person at an employer's premises in working hours could interrupt the course of the worker's employment. Not everything that a worker does in working hours at his place of employment is done in the course of his employment. Prima facie a discussion between Williams and O'Neill about Williams' relationship with O'Neill's wife and O'Neill's resentment of it would be outside the course of Williams' employment. To conduct such a discussion would seem to be neither part of Williams' work nor something incidental to his work. There could, therefore, be sound grounds for the learned trial judge treating a discussion as interrupting the course of Williams' employment. Because a discussion could have this consequence, and no more is known here than that there was a discussion between Williams and O'Neill, I do not think that it can be said as a matter of law that the learned trial judge was in error in holding that the discussion which he found took place interrupted the course of Williams' employment. (at p152)

8. It seems to me, however, that the Court of Appeal really decided the case on an entirely different ground. The basis of this decision was, it seems, that the worker's flight from his employer's premises was of itself in the course of his employment because, to use the language of Mason J.A. (1971) 1 NSWLR, at p 555 .

". . . it would be universally recognized that it is incidental

to the service of an employee to take steps to avoid a risk of

personal injury arising from a danger which presents itself

at the place of employment, including the taking of flight

from the premises, if the danger be such as to warrant the

taking of that course . . . Certainly it must be correct to say

that the avoidance of a risk of personal injury arising from a

danger at the place of employment, is something which the

employee would be expected or authorized, if not required,

to do by his employer, not only because it is in the interest of

the employer that his servant should not sustain injury, but

also because the employer would expect his servant to take

reasonable steps for his own safety." (at p152)

9. With great respect, I consider that this statement goes too far. In some circumstances to take flight from his place of employment would be within the course of a worker's employment, but in other circumstances it would not. If, for instance, Williams and O'Neill were having a private fight, outside the course of Williams' employment but nevertheless upon the company's premises and in working hours, and Williams fled to escape injury, could it be said that, necessarily, his flight would be within the course of his employment? I think not. If, therefore, it was open to the learned trial judge to find that the course of Williams' employment was interrupted by a private discussion with O'Neill, his flight from O'Neill's rifle would not, of itself, necessarily bring him within the course of his employment. Accordingly, to regard self-preserving flight by Williams as decisive in his favour on the matter in issue was, I think, an error. Notwithstanding his flight, the issue remained, viz. whether the finding that there was a discussion between Williams and O'Neill, which began an interruption to the course of Williams' employment, was an error of law. As I have already said, I do not think that it was. (at p153)

10. The members of the Court of Appeal did, it seems, find support for their conclusion in the decision of this Court in Weston v. Great Boulder Gold Mines Ltd. [1964] HCA 59; (1964) 112 CLR 30 . It seems to me that that case and this are quite different. There a mine worker was injured by blows from a cudgel. He was struck first and wounded when he had stepped from a locomotive to adjust the points of the railway line and to have a drink. When, upon being struck, he ran away, he was chased along the mine floor and when he fell down, some 250 feet from the place where he was first struck, he was struck with the cudgel again and probably left for dead. There the injuries, or at least the first of the injuries, were inflicted while the worker was actually working. There was but one assault which began while the worker was at work. As I said, but with emphasis added (1964) 112 CLR, at p 35 :

". . . if the appellant's injury was injury by accident, then

Kavanagh v. The Commonwealth

[1960] HCA 25; (1960) 103 CLR 547

compels the conclusion

that as it happened while he was working, it was injury by

accident arising in the course of his employment."

Here it is common ground that Williams was not injured while he was working. He was injured while he was running away, and it has been found by the Court of Appeal that in running away he was doing something which was incidental to his work. This case, as it seems to me, poses an altogether different problem from that which the Court dealt with in Weston v. Great Boulder Gold Mines Ltd. [1964] HCA 59; (1964) 112 CLR 30 and for the problem here the decision there affords no guidance. (at p153)

11. In my opinion the Court of Appeal was in error in deciding that, upon the facts stated by the learned judge, with the addition of the further facts stated in the answers to the questions put by the Court of Appeal to the Commission, and with such explanation as was necessary to make those answers comprehensible, the learned judge was, in law, in error in not being satisfied that the worker was injured in the course of his employment. (at p153)

12. Accordingly, in my opinion, the appeal should be allowed. (at p153)

WALSH J. The problem raised by this appeal is such that, however it may be resolved, the result will not be one that can be viewed with great satisfaction. If the respondent should succeed, he will obtain compensation for an injury which might well be thought to be far removed from the class of injuries which one would expect to be compensable under an Act by which employers are required to provide compensation for workers in respect of employment injuries. On the other hand, if the respondent should fail, a decision denying to him the benefits of the Act cannot be made without reluctance, having regard to the fact that the benefits of that legislation or other similar legislation have been accorded to workers or to their dependants in circumstances having a similar lack of any real connexion with the employment. In saying that, I have in mind not only the case of Weston v. Great Boulder Gold Mines Ltd. [1964] HCA 59; (1964) 112 CLR 30 and other cases in which assaults have been made on workers, such as Evans v. Australian Gas Light Co. (1958) WCR (NSW) 30 and Carney v. Excelsior Spring Co. Pty. Ltd. (1958) WCR (NSW) 69 . I have in mind, also, other cases of injury or death from natural causes or from non-industrial accidents, such as Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 and The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353 . But the Court is, of course, concerned in this appeal only with the case before it and the question of law therein raised. We have no authority to make any findings of fact. The question of law is limited to the legal effect of the facts found by the learned judge in the Workers' Compensation Commission who heard the case. The question does not relate to any other findings of fact which, if made, may have been supported by the evidence. We are not able to resolve the question before us by means of a comparison between the facts of this case and those of any other case. In the Court of Appeal, Asprey J.A. set out reasons for his conclusion that such differences as may be found between the facts of this case and those of Weston's Case [1964] HCA 59; (1964) 112 CLR 30 ought not to be regarded as relevant (1971) 1 NSWLR, at pp 550-552 . But such a comparison and evaluation of different sets of facts cannot determine, in my opinion, the question here, which is not whether the learned judge ought to have decided the case in the respondent's favour, but whether he was bound in law to do so. (at p154)

2. In judgments of this Court it has been laid down that an injury, which occurs to an employee whilst he is performing the duties of his employment or is doing something which is incidental to the performance of his duties, constitutes an injury "arising in the course of his employment", althought there is no causal relation between the injury and the employment or its incidents. This principle has not been challenged in this appeal and it must be accepted. It was applied in Kavanagh's Case [1960] HCA 25; (1960) 103 CLR 547 to a rupture of the oesophagus which occurred when a worker being on duty at his place of employment was on his way back from a visit to the toilet. It was applied in Weston's Case [1964] HCA 59; (1964) 112 CLR 30 to injuries suffered by a worker who was assaulted by a man who had a grievance against the worker, derived from circumstances having no association with the employment. The Board which heard the claim at first instance found that the injuries arose in the course of the employment. The Full Court of the Supreme Court of Western Australia decided that in so holding the Board had erred in law. On an appeal to this Court, it was stated by Menzies J. (1964) 112 CLR, at p 35 that if the appellant's injury was injury by accident "then Kavanagh's Case [1960] HCA 25; (1960) 103 CLR 547 , compels the conclusion that as it happened while he was working, it was injury by accident arising in the course of his employment". But what this Court decided was that the Board had not erred in law in holding that the injuries arose in the course of the employment. It is important to observe that the statement made by Menzies J. to the effect that Kavanagh's Case [1960] HCA 25; (1960) 103 CLR 547 compelled that conclusion was based on the premise that the injury happened while the applicant was working. This means, in my opinion, that Weston's Case [1964] HCA 59; (1964) 112 CLR 30 cannot be regarded as governing this case, unless it should first be decided that the learned member of the Workers' Compensation Commission was bound to find that the injury sustained by the respondent happened "while he was working" or, at any rate, while he was actually engaged in doing something which was incidental to his employment. A conclusion that his Honour was bound to make that finding cannot be said, in my opinion, to be a necessary consequence of the decision in Weston's Case [1964] HCA 59; (1964) 112 CLR 30 , notwithstanding the similarities that exist in several respects between the facts of that case and the facts found in this case. It is not enough for the respondent to assert that it would have been open to the learned judge to find that the respondent was doing at the time of his injury something that was incidental to his employment and that, therefore, he was in the course of employment at that time. He must establish that the circumstances, as they were found by the judge, were such that as a necessary legal consequence the respondent must be held to have been then engaged in the course of his employment. (at p155)

3. The principles just stated were recognized by the Court of Appeal. Mason J.A. referred to the principle that "if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact" (1971) 1 NSWLR, at p 557 . A fairly recent example of the application of that principle in a case where the question was, as here, whether or not a worker was at the time of his injury in the course of employment is furnished by the case of Hall v. Yellow Cabs of Australia Ltd. (1970) 92 WN (NSW) 426 . Mason J.A. said (1971) 1 NSWLR, at p 557 , also, that "the facts of the present case necessarily fall within the statutory expression", that is to say, the expression "course of employment". The question to be considered is whether the principles thus recognized were correctly applied to the facts found by the primary judge. (at p156)

4. In some cases it is a difficult task to determine whether different conclusions or but one conclusion are or is reasonably open. It is easy, in endeavouring to make a decision on that question, to slip across the boundary which must be maintained between the evaluation of the legal consequences of facts already found and the making of findings of fact. In this case our attention must be confined to the facts which the learned judge stated as having been found by him. On a consideration of those facts, I have reached the conclusion that it was not a case in which his decision should have been held to have been erroneous in law. (at p156)

5. There is a difficulty as to what precisely are the findings of fact to which we must direct our attention. Whatever may have been the extent to which the transcript of evidence was to be treated, by the agreement of counsel, as being available to explain the findings of fact, I think it is clear that the transcript could not be used to displace or to modify them, or, indeed, to add to them. I am of opinion that the view that Menzies J. has expressed in his judgment in this appeal, as to the findings which may be taken to have been made, is correct. (at p156)

6. The decisions of fact of the learned primary judge require to be considered in two aspects. The first is that he found, according to the answers given to the questions submitted to him by the Court of Appeal, that there was a "discussion" between the man named O'Neill and the present respondent near the drum and there was a "further discussion" after the appellant had spoken to a man named Innes and both these discussions "interrupted" the course of employment. The latter "interruption" continued up to the time when the respondent was injured. On these findings the comment may be made that findings as to the events that actually occurred were truly findings of fact, but a conclusion that something which did occur "interrupted" the "course of employment" was not simply a finding of fact but was a conclusion that the events which occurred took the case out of the scope of the statute. I assume therefore that the description of what occurred as an "interruption" of the course of employment was examinable by the Court of Appeal and that it was not a finding which concluded the case against the present respondent. But upon that assumption, I think that when the answers to the special questions are considered in conjunction with the findings in the original case stated, findings were made that in fact there was an occurrence of incidents, the second of these being the important one, in which the respondent took part and during which he was not actually performing his work and was engaged in some kind of exchange with O'Neill. One may question whether when describing these incidents it was apt to use the term "discussion" but that is, in my opinion, of no consequence. In my opinion, it is not legitimate, having regard to what the learned primary judge stated, for an appellate court to say that there was no relevant break in what the respondent was doing. That there was a break must be accepted as a fact, although this does not necessarily preclude any further consideration of the ultimate question asked by the case stated. (at p157)

7. The second aspect of the facts which must be considered is the flight of the respondent immediately after the occurrence of the second of the incidents just discussed. The primary judge found that this was a flight from the premises where the respondent was employed and that he was "fleeing from the threatened use of the gun and from the offers of violence of O'Neill" when he was shot. In my opinion, those findings do not compel nor do they exclude a conclusion that in making that flight the respondent was doing something incidental to the performance of his duties. I do not regard the fact that he had reached the footpath as itself requiring a conclusion that he was not in the course of employment. But I am of opinion that a decision whether in making the flight he was or was not in the course of employment was in the circumstances a decision of fact and that a decision in his favour on that question was not one to which the learned judge was bound to come. (at p157)

8. In the Court of Appeal Mason J.A. appears to have taken the view that, although a decision whether the activity in which an employee is engaged at the time of injury is or is not incidental to his employment would ordinarily be a decision upon a question of fact, nevertheless the basis of the decision against the respondent was a finding that the course of employment ceased when he was disturbed on the second occasion or when he commenced his flight or perhaps when he passed beyond the boundary of the employer's premises. Mason J.A. appears to have considered that since the immediate cause of the disturbance was O'Neill's threat and offers of violence which created a grave danger to the respondent's life and since that danger was the reason for the flight it should be concluded that the question for the learned judge of first instance ceased to be merely one of fact and degree. But with respect I cannot share that view, which depends, I think, upon a premise that his Honour accepted, but I am unable to accept, namely, that all flights by an employee from dangers which present themselves at the place of employment are necessarily incidental to the service of the employee. (at p158)

9. I am of opinion therefore that it should not be held that the primary judge erred in failing to be satisfied that the respondent met with an injury in the course of employment. I am of opinion that this appeal should be allowed. (at p158)

STEPHEN J. This is an appeal from the unanimous decision of the Court of Appeal Division of the Supreme Court of New South Wales allowing an appeal by way of stated case from the award of Judge Wall of the Workers' Compensation Commission of New South Wales in favour of the employer (1971) 1 NSWLR 547 . The Court of Appeal held that the learned trial judge erred in law in finding that the applicant worker had not established that he received injury arising out of or in the course of his employment with the respondent employer. (at p158)

2. The Workers' Compensation Act, 1916 (N.S.W.), as amended, entitles a worker to compensation if he has received personal injury arising out of or in the course of employment - s. 7 (1) (a) and definition of "injury" in s. 6 (1). (at p158)

3. In the present case it is only with the phrase "in the course of employment" that the Court is concerned ; that there was personal injury suffered is not in dispute and it is not contended that it arose "out of" the worker's employment. (at p158)

4. Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work : Kavanagh v. The Commonwealth per Fullagar J. (1960) 103 CLR, at p 559 . It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, "there is nothing more in the concept than time measured by activity of a particular character" : Kavanagh v. The Commonwealth per Menzies J. (1960) 103 CLR, at p 570 . It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker ; so long as he is engaged in his work or something incidental to it the time span endures ; as soon as he ceases to be so engaged the time span ends and with it the course of employment. (at p159)

5. That which is incidental to a worker's work depends upon "the sufficiency of the connexion between the employment and the thing done by the employee" which is "a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment" : Whittingham v. Commissioner of Railways (W.A.) per Dixon J. [1931] HCA 49; (1931) 46 CLR 22, at p 29 . It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he "was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties" : Humphrey Earl Ltd. v. Speechley per Dixon J. [1951] HCA 75; [1951] HCA 75; (1951) 84 CLR 126, at p 133 : whether the accident has happened "while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service" : Pearson v. Fremantle Harbour Trust [1929] HCA 19; (1929) 42 CLR 320, at p 330 . (at p159)

6. It is apparent from the foregoing that when an appellate court has to determine, on a stated case, whether a worker's injury was sustained in an activity incidental to his work the precise identification of the facts found by the trial judge is of prime importance. In the present case the unsatisfactory process which ultimately yielded those facts has been described in the reasons for judgment of my brother Menzies, which I have had the advantage of reading. I agree, with respect, with his view that the critical finding of fact is no more than that when O'Neill returned with a rifle there was a discussion, of unstated content and duration, which the learned judge found interrupted the worker's course of employment. So meagre a finding of fact provides no material from which can be distilled a conclusion that, on those facts, the learned trial judge was in error in holding that the discussion brought the course of employment to an end. I also agree with my brother Menzies, and for the reasons stated by him, that neither on the authority of Weston v. Great Boulder Gold Mines [1964] HCA 59; (1964) 112 CLR 30 nor on general principles did the subsequent flight of the worker following that discussion necessarily bring the worker within the course of his employment. (at p160)

7. Accordingly in my opinion this appeal should be allowed. (at p160)

Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu therof order that the question asked in the case stated be answered "No" and that the appeal to that Court be dismissed with costs.