Commonwealth v Hollis

I should add, because of some matters discussed in argument, that whether a man lives in at his place of work is a question of fact. If he be, for example, a soldier in camp or barracks, as the applicant was, his sleeping quarters and mess room are quite likely to be in some building separate from the office, parade ground or other place where his duties are performed. They may be some distance away. But none the less he lives where he works, and s. 9A does not apply to him. When going from his quarters or mess room in one part of the barracks, camp or similar establishment to his post of duty in another part, he is not travelling to his employment, and thus deemed to be in the course of his employment. He is actually in the course of his employment - or so it seems to me. This I think would provide an answer for some hypothetical and seemingly anomalous cases suggested during the argument. It is not necessary to deal with them, for in the light of Adock's Case [1] they cannot make s. 9A applicable in this case. It is, however, I think pertinent to notice that s. 9A takes over only where s. 9 leaves off. Dixon C.J. reached a conclusion different from that of the majority in Adcock's Case [1] ; but his Honour's observations on this point are pertinent. He said [2] , "I think that it may be said with some confidence that whatever otherwise may be the operation of s. 9A it was intended that the potential right to compensation it confers upon the employee should attach where that given by s. 9 (1) ceases or ends". I respectfully agree. Section 9A gives an employee a right to compensation for an injury caused to him while travelling "as if the accident were an accident arising out of or in the course of his employment". When an accident does in fact arise out of or in the course of employment s. 9A need not be, indeed cannot be, resorted to, for s. 9 (1) then applies. The course of a man's employment is a wide concept. "It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work." That was said by Dixon J., as he then was, in Henderson v. Commissioner of Railways (W.A.) [3] . I need not quote further, although the whole passage would be relevant in some of the situations imagined during the argument in this case.

1. (1960) 103 C.L.R. 194. 2. (1960) 103 C.L.R. 194. 3. (1960) 103 C.L.R., at p. 199. 4. (1937) 58 C.L.R. 281, at p. 294.

In short, it is I think a mistake to suppose that a man in the services who is injured when off duty is necessarily outside the scope of the Act. If he be injured when in his ship, barracks or camp he may have been there in the course of his employment although not at the time performing any particular task. Also, some travelling to duty which is not within s. 9A can be in the course of employment within s. 9. For example, take the case supposed of a member of the ship's company of a vessel in the navy, or a living-in member of an army unit, who in off-duty hours is abroad in town. Because of some emergency he is recalled to duty, ordered to return and report to his unit forthwith or to repair on board immediately. In the course of doing so he is injured by accident. He would, in my view, be entitled to compensation - not by virtue of s. 9A, for it does not apply to him, but by virtue of s. 9, for when injured he was acting under orders and in the course of his employment. However, this case is unlike anything of that sort.

In my opinion the appeal must be allowed. I would not make any order as to the costs of the proceedings here or in the Court below. The Commonwealth's appeal has succeeded; but I do not think the respondent should be ordered to pay its costs. The language of the statute does not fit easily with the customs and conditions of naval and military service; judicial dicta have not all been consistent; and the decision of his Honour in the Court below might seem to get support from some passages in judgments in this Court. I would simply allow the appeal and restore the decision of the Delegate of the Commissioner.

This is an appeal by the Commonwealth from a decision of McIntosh D.C.J. exercising jurisdiction under s. 20 of the Commonwealth Employees' Compensation Act 1930-1967 by which his Honour upheld an appeal by the present respondent against a determination of the Commissioner for Employees' Compensation dismissing the respondent's claim for compensation based upon s. 9A (1) of the Act. That sub-section imposes an obligation to pay compensation where a Commonwealth employee - which, with certain exceptions not material in the present case, includes a member of the Defence Forces - suffers personal injury by accident while "he is travelling to or from his employment by the Commonwealth", and, by sub-s. (2), "travelling" is defined to mean "travelling by the shortest convenient route for the journey" but "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 " unless it is considered by 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, in which case he may, on behalf of the Commonwealth, accept liability.

In The Commonwealth v. Wright [1] and again in Adcock v. The Commonwealth [2] this Court had to consider whether the section could be applied in the case of an employee who lives at his place of employment and who sustains personal injury in the course of a journey, made while he is off duty and for his own purposes, to or from the place where he both lives and works. This is such a case. The respondent was a member of a unit of the Regular Army stationed at the Puckapunyal Camp. He was granted week-end leave from midnight on Friday, 3rd September 1965 to midnight on Sunday, 5th September 1965. He remained in camp on the Friday night and, after doing some hours' work in the Camp Transport Office on the Saturday morning, he went at about 10.30 or 11 o'clock to the neighbouring town of Seymour where he had his hair cut and made some bets at the Totalizator Agency. He then returned to the camp where he had his lunch and slept for a time. In the evening he drove in his car to a dance which was being held some miles away and at about midnight set off to return to the camp by the shortest convenient route. On the way his car ran off the road and he was injured. His intention was to return to the camp there to sleep and have breakfast and then complete the work which he had been doing on the Saturday morning in the transport office.

1. (1956) 96 C.L.R. 536. 2. (1960) 103 C.L.R. 194.

I am unable to find any relevant distinction between this case and Adcock's Case [2] and the judgments of Fullagar, Kitto and Windeyer JJ. in that case seem to me to determine the matter against the respondent. The case is not one in which a member of the Forces living in barracks or in a military camp has during a period of leave temporarily taken up residence away from his place of employment and for the time being ceased to be a living-in member of his unit. The respondent here in fact remained a living-in member of his unit throughout the week-end notwithstanding the fact that, if he had wished to do so, he could have absented himself from the camp and temporarily lived outside it for the period of his leave. In these circumstances, the majority decision in Adcock's Case [2] seems to me to compel the conclusion that when the respondent was returning from the dance he was not, in any relevant sense, travelling to his employment any more than he was travelling to it when he was returning to the camp from Seymour on the Saturday morning after visiting the hairdressing shop and the Totalizator Agency there.

1. (1960) 103 C.L.R. 194. 2. (1960) 103 C.L.R. 194.