Brereton, G.E. v Commonwealth of Australia [1987] FCA 405

Employees) Act 1971 (the Act). The delegate had decided that

the Commonwealth was not liable to pay compensation to the applicant who was, at the material time, a member of the Defence Force, serving aS a private in the Army. The Tribunal decided that the Commonwealth was "not liable to pay compensation to [the applicant] because the personal injury he suffered did not arise out of or in the course of his employment by the Commonwealth and cannot be deemed to have done so" and affirmed the delegate's determination. The appeal to this court from the decision of the Tribunal is on

"J... from early in 1980 until about 17 February 1981 the applicant was stationed at the Army's 2 Military Hospital, Ingleburn. On about 17 February 1981 he was posted from that unit to the Army's 2 Military District Personnel Depot at Watsons Bay to await his discharge from the Army. While at that depot he resided in barracks and was required to undertake such duties as might be assigned to him until he was discharged. February 20, 1981 was ae Friday; the applicant was on duty on that day until about 4.00 p.m. After that he rode his motor cycle from Watsons Bay, which is a part of metropolitan Sydney situated to the east of the city centre, to 2 Military Hospital, Ingleburn. Ingleburn is situated between Liverpool and Campbelltown. The hospital there is located between Campbelltown Road and the South Western Freeway, which is part of the Hume Highway. The applicant arrived at the hospital early in the evening and spent the evening with his friends there; until 10.00 p.m. he was

along Campbelltown Road." While the applicant was so travelling in Campbelltown Road at about 3.00 a.m. on Saturday, 21 February 1981, he was involved in a traffic accident (the accident) in which he

suffered serious head injuries, which resulted in some

The applicant's claim was put to the Tribunal on alternative bases. First, it was contended "that he was a member of a special task force and that his duties as a member of it were such that he was engaged in his employment for the purpose of section 27 at all times, day and night, 24 hours a day, 7 days a week." There was conflicting evidence as to whether such a "special task force" ever existed and, if so, as to whether the applicant remained a member of it after 17 February 1981 when he was posted to Watsons Bay. The Tribunal considered that, because of evidence as to the applicant's belief, "he must be regarded as having been still under the orders of his superior officers to comply with

"The task force or group had no function, except in an emergency. It did not even undergo training as a group. The applicant was continuing to undertake his normal

duties. He was rostered for. duty in the normal manner and, when he was not rostered for duty, he was free to leave his unit to go about his own business until the time when he was again rostered for duty. The only difference between his situation and that of any other member of the Defence Force was that he believed that he had to keep his field equipment packed ready for use and, whenever he left his unit otherwise than in the course of his rostered duty, he was required to inform someone at the unit of his whereabouts during his absence from the unit."

The Tribunal found that "the applicant's compliance with the instructions given by Major Curran did not result in his remaining in the course of his employment for 24 hours a day, seven days a week". It was submitted on behalf of the applicant that in so deciding the Tribunal erred in law by reason of its application of the principles enunciated by the

High Court in The Commonwealth v Wright (1956) 96 CLR 536.

In our opinion no such error of law occurred and the Tribunal did not err in law in finding that the applicant was not in

the course of his employment when the accident occurred.

The alternative way in which the applicant's case to

"on the basis that when the accident occurred, he was travelling to his employment, as he was required to commence work as telephone operator at Watsons Bay at 8.00 a.m. on the morning of 21 February 1981, and also that he was travelling to his place of employment and his period of liberty, which started at about 4.00 p.m. on 20 February, would have ended at 8.00 a.m. on 21 February when he started that work.

and so is to be treated as though it constituted part of his employment by the Commonwealth."

(a) the applicant's journey from his place of employment

(b) at the time when the accident happened, the applicant

{c) when he travelled from the hospital at Ingleburn

towards Campbelltown he was engaged in a separate journey;

(d) the applicant intended to return to Watsons Bay that night, after he had had something to eat in Campbelltown, and to travel directly from Campbelltown without returning to the

(e) the applicant had not been rostered to attend for duty

On those findings, in our opinion, the Tribunal did

not err in law in deciding that, at the time when the

accident occurred, the applicant was not on a journey to his employment. Nor did the Tribunal err in deciding that, at the time of the accident, the applicant was not on a journey from his employment. Moreover the Tribunal's finding in (e) above that the applicant was not rostered to attend for duty on 21 February 1981 precluded a conclusion that his journey was deemed, pursuant to s. 34(2)(a), to have been a journey to his employment. Secondly the journey on which the applicant was engaged between Ingleburn and Campbelltown could not have been deemed, pursuant to s. 34(2)(b), to have been a journey from his employment because the exclusion contained in s. 35(2) operated by reason of the Tribunal's finding in (c) above that it was a separate, and, therefore, a second, journey in the prescribed period between 4.00 p.m.

The remaining ground of the appeal was that the Tribunal misdirected itself as to the weight of the evidence led on behalf of the respondent in respect of the duty roster for the morning of 21 February 1981 but in our opinion there is no substance in that ground. No such challenge was made

As the applicant has failed to demonstrate any error of law by the Tribunal, the appeal must be dismissed and the

applicant ordered to pay the costs of the respondent.

I certify that this and the preceding five pages are a true copy of the Reasons for Judgment herein of the Court.