Commonwealth v Anderson

(1) Where personal injury by accident is caused to an employee while he is travelling to or from - (a) his employment by the Commonwealth (including any school in relation to which sub-section (2) of the last-preceding section applies); or (b) any place which it is necessary for him to attend to obtain a medical certificate or to receive medical treatment or compensation in respect of a previous injury, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment.

(2) In this section "travelling" means travelling by the shortest convenient route for the journey and 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, attendance at the school or obtaining the certificate, treatment or compensation, as the case may be:

Provided that the Commissioner may, on behalf of the Commonwealth, accept liability, if he considers that in the circumstances of any particular case the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of any such interruption or deviation.

Much turns upon the proviso to sub-s. (2) in the determination of this appeal. For it was held by the learned county court judge that, notwithstanding that the deputy of the commissioner who dealt with the case had refused or failed to give relief under the proviso to the now respondent, s. 20 enabled the learned judge to apply the proviso on appeal against the determination or action of the commissioner's deputy. His Honour went on to decide that the case fell within the proviso and that the respondent was entitled to succeed. The Act extends, with certain exceptions not presently material, to soldiers: s. 4 (1), definition of employee and s. 4A (2).

The respondent is the widow of a staff sergeant who was posted as Section Leader, No. 1 Section, A Group, Department of the Army, Central Records Office. He lived at Surrey Hills, a suburb of Melbourne, and on the night of 14th December 1953, while he was walking uphill from the Surrey Hills railway station he suffered a heart attack from which shortly afterwards he died. His widow made a claim for compensation on the ground that his death was caused by personal injury by accident while he was travelling from his employment by the Commonwealth. According to his widow's evidence, when he left home that morning for his work, which seems to have been in the Army buildings in Albert Park, he was quite well. It is clear, however, from other evidence that during the day he suffered from pains in the region of the heart and the medical evidence which was acted upon by the learned county court judge showed that death resulted from coronary arterio-sclerosis. That evidence was to the effect that the final attack was precipitated by the walk uphill. The learned judge found that the deceased's heart had reached a critical stage where it was unable to cope with the exertion required to enable him to climb the hill to his home. His Honour was not of opinion that his heart attack was due to anything which happened during the day while he was actually performing duty.

It appears from the evidence that about 1 p.m. on the day of his death he telephoned to his wife to say that he might be working back that night but that as he felt very poor he hoped that he did not have to do so. He seems to have stopped work at the Army buildings shortly after 5 p.m. It apparently was his custom to walk to the St. Kilda railway station, a distance of about four hundred yards, and to go home by train. In walking in that direction he caught up with a Mrs. Brennan who was employed at the Army buildings. He asked her why she was hurrying so much and said that he had a pain in his chest. He left her and went to the George Hotel, which is opposite to the station. She went to her flat, which was about seven hundred yards from the hotel, and a little later he came to the flat offering to help her lift some flower pots, a thing she refused to allow him to do. He sat slumped in a chair and complained of pains in his chest. A Mr. Capp came to the flat who seems to have been up till then a stranger to the deceased. Mr. Capp offered to drive him by car some distance upon his journey home. They left the flat about 9 p.m. Mr. Capp set him down at the Glenferrie railway station. Shortly after half-past 9 p.m. the deceased caught a train for Surrey Hills. It was on the journey from the Surrey Hills station up the hill that he collapsed.

On these facts the learned county court judge decided that there had been a substantial interruption of the deceased's homeward journey, although his Honour had some doubt whether it was a substantial deviation from his route within the meaning of s. 9A (2). He decided that the jurisdiction of the court under s. 20 extended to reviewing the exercise of the authority of the commissioner to accept liability if he considered that in the circumstances of any 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. His Honour held that the interruption of the journey, if anything, lessened the risk of accident because it enabled the deceased to rest and, further, that the deviation did not in any way add to the risk. His Honour decided too that the failure of the commissioner to exercise his discretion under the proviso favourably to the widow was unreasonable. In any case the learned judge took the view that under s. 20 he was required to deal with that as other questions as on a rehearing and so to place himself in the position of the commissioner. He had no hesitation on that basis in holding that liability to pay the compensation should be borne by the Commonwealth.

The first question which presents itself is whether the case is one where a journey from the employment was interrupted or where a deviation from the journey occurred. It is contended for the appellant Commonwealth that the case is rather one where the "travelling from the employment" terminated altogether when the deceased reached Mrs. Brennan's flat. If that is so, the respondent's claim, of course, must fail hopelessly. The very great difficulty of interpreting and applying the definition of "travelling" has been discussed in the judgments of members of the Court in The Commonwealth v. Wright [1] . Nothing is to be gained by going over the same ground again. I suppose the question must be decided as one of fact and the destination which the deceased set for himself when he left his employment must be a material consideration. The meagre evidence points to the conclusion that he intended to journey home but was led to "interrupt" his intended journey. That seems to have been the view of the county court judge and there is no sufficient ground for departing from it. That the interruption was substantial there can be no question. Why the deputy of the commissioner did not accept liability on behalf of the Commonwealth we do not know. But he did not. Is his failure to apply the proviso to the case an "action of the Commissioner" against which s. 20 gives an appeal? The text of s. 20 substantially has been set out already, but it may be as well to recall that the "appeal" to the county court is against the determination or the action of the commissioner and that it is intended to be a complete rehearing. Section 20, coupled with the definition of County Court in s. 4, amounts to an exercise of the power given by s. 77 (iii.) read with s. 76 (ii.) of the Constitution to invest the court of a State with federal jurisdiction in a matter arising under a law made by the Parliament. The jurisdiction it confers is in truth original and it is given for the purpose of submitting to judicial decision the correctness of what has been determined or done by the commissioner or his deputy to the disadvantage of a claimant. The words in s. 20 "action of the Commissioner" are cumulative upon the words "determination of the Commissioner" and seem to be intended to enable the claimant to call in question whatever the commissioner has done to the prejudice of the person affected; while "determination" seems to refer to the commissioner's quasi-judicial administrative decision. But s. 20 formed part of the original Act of 1930, whereas the proviso to s. 9A (2) was introduced by Act No. 61 of 1948 as part of the re-writing of s. 9A. It is therefore a subsequent provision which cannot have been within the contemplation of the draftsman of s. 20. Moreover the proviso is expressed as enabling the commissioner to "accept liability on behalf of the Commonwealth" when the circumstances of the case fulfil the condition stated. Again it is he who is to "consider" whether the conditions stated in the proviso are fulfilled. Like other provisions of the Act, no doubt the language employed is neither artificial nor precise. But nevertheless the proviso conveys the impression that a discretion belonging to the commissioner in his official capacity to accept a liability not otherwise existing was all that the legislature had in contemplation. It is not unimportant that the commissioner is the Secretary to the Treasury. The words "the Commissioner may" in the proviso suggest a discretionary power, although, no doubt, it is difficult to know on what further considerations the exercise of such a discretion should be based once it appears to 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. But even if the scope and purpose of the relevant provisions of the statute do not readily suggest any additional considerations which might be relevant to the exercise of the discretion conferred on the commissioner by the word "may" in the proviso, it is hardly possible to construe the provision as obliging the commissioner to accept liability for the Commonwealth when the condition stated by the proviso is fulfilled. The word "may" must be interpreted as conferring a discretion upon him. So to construe it, perhaps, does not make it entirely impossible to treat s. 20 as operating to pass or transfer his discretion to the county court in the case of an appeal. But if the consideration supplied by treating the word "may" as conferring a discretion is added to the fact that "accepting liability" is the thing which the commissioner has a discretion to do and the further fact that his discretion is to arise, not on the circumstances as they are found in truth to exist, but as to the commissioner they appear to be, it follows as an inevitable conclusion that the proviso must be understood to confer a discretion to pay a claim notwithstanding an absence of liability and not such a discretionary judgment as an appeal under s. 20 could transfer to the county court. In other words, the discretion belongs to the commissioner as Secretary of the Treasury and cannot be reviewed by the Court on an appeal under s. 20. The result of this view is that the decision of the learned county court judge cannot stand. But it does not necessarily follow that the learned judge should simply have dismissed the appeal of the now respondent. Upon the materials before him a strong case appeared for supposing that the proviso applied to the case so as to enable the commissioner to exercise his discretion. These materials were not before the commissioner or his deputy. Moreover there is nothing to show, or even to suggest, that the commissioner or his deputy ever applied his mind to the question and it is quite possible, perhaps more than possible, that he accepted the view that the deceased's journey from his employment on the day of his death ended at Mrs. Brennan's flat or even at the George Hotel. If so the question whether his journey from his employment was interrupted never arose and consequently the proviso could not be applied. For all that appears he may have never considered the question which is within his discretion. In these circumstances it would have been proper for the county court to declare that the deceased's death occurred while he was travelling from his employment but after a substantial interruption of the journey and with that declaration to remit the matter to the commissioner or his deputy so that he may consider the exercise of his discretion under the proviso to s. 9A (2) of the Act.

1. (1956) 96 C.L.R., at pp. 544-546, 548, 552-554, 557, 558.

The appeal should be allowed, the order of the county court set aside and in lieu thereof the foregoing declaration and order made.

I would allow the appeal for the reasons given by the Chief Justice.

I agree with the reasons of the Chief Justice and I have nothing to add.