Danvers v Commissioner for Railways

The respondent provided what is described in the evidence as a van, which was an old meat waggon converted by the respondent to provide living accommodation for two people. It contained a stove, sink, table, a Tilley pressure lamp and a kerosene refrigerator, as well as beds and a chest of drawers for holding clothing. "Rubber mattresses and all the necessities for the workmen to live in the van, other than their own linen and food" were all provided by the respondent. Though the matter was not exhaustively pursued in the evidence, it appeared that there was "some industrial agreement between the Department", i.e. the respondent, "and the union as to the minimum requirements of civilization" in a van such as that in question and the respondent kept a schedule of what the union required to be in this van. The van, besides its use as a dormitory, was used to store paint and tools, the property of the respondent, and apparently of a kind likely to be needed by the deceased and those working with him in maintenance and repair work along the railway line.

It was the practice of the respondent to take the van to a spot convenient to the site of the work to be done by the deceased. It was attached to one of the respondent's trains and positioned by means of the respondent's locomotives. The deceased was not by any express direction required by the respondent to use the van as a dormitory but clearly enough when the place of work was remote from habitation and the van was placed by the respondent in position near that work, it might well be thought that, though not requiring him to do so, the deceased was entitled to use it as a dormitory and that the respondent expected that in the ordinary course he would do so. Indeed, it was said in evidence by an officer of the respondent that it was the respondent's policy to provide the van for men in the situation of the deceased to live in so as to enable them to work in remote areas; and that it was realized that it was impractical for the deceased to do his work unless he lived on the job. It was in recognition of this situation that the van was provided and moved from time to time by the respondent to points adjacent to the work place of the deceased for the time being. He was paid a "camping allowance" of $1.15 per day when living away from home and using the van: but if no "camp" had been provided and he did not return home, he would have been paid an allowance of $4.00 per night.

At the time of his death the deceased's duties had brought him to the scene of a collision between a motor vehicle and a railway train where the railway line crosses the Hume Highway near the village of Coolac. The respondent had moved the van from a place called Muttama where apparently the deceased had been working and positioned it on a goods siding about 200 yards from the Coolac railway station in order that it be near the deceased's place of work at the railway crossing. In the village there was a hotel where presumably accommodation could be had. But there was no evidence as to the nature or cost of this accommodation.

On the evening of his death, the deceased completed his day's work some time after 4 o'clock in the afternoon. Later he went to the hotel in the village for a drink before returning for the night to the van, which he did sometime after 7 o'clock in the evening. During the evening a fire, the origin and cause of which is unknown, broke out in the van and the deceased, as the coroner found, was suffocated and his body incinerated. There is no direct evidence as to what the deceased was doing when the fire commenced or at the time it or its effects overwhelmed him. But, in my opinion, it could be inferred that at these times he was asleep. It is quite clear that between his knocking-off time that evening and the resumption of work at 7.30 in the morning the deceased had no duties to perform for the respondent. As it was said in evidence, during these hours his time was his own. If not occupying the van the deceased would be expected to lock its door. But he had no caretaking duties in respect of the van or of its contents.

The learned member of the Workers' Compensation Commission who heard the appellant's application for compensation in respect of the death of the deceased, after reviewing a number of reported decisions, found that the deceased sustained an injury within the meaning of the Workers' Compensation Act, 1926-1966 N.S.W. (the Act) arising both out of and in the course of his employment. He did not elaborate his reasons for this conclusion but he made an award in favour of the appellant, the widow of the deceased. The Supreme Court (Court of Appeal Division) allowed an appeal by the respondent replacing the Commission's award by an award in favour of the respondent [1] . The appellant now appeals to this Court and seeks the restoration of the Commission's award in her favour.

1. (1968) 72 S.R. (N.S.W.) 260; 89 W.N. (Pt 2) 127.

The majority judgment of the Supreme Court contains the following passage which was the basis of their Honours' view that there was no evidence before the Commission that could justify a finding that the death of the deceased was compensable under the Act. It was said:

"Although some of the reported decisions of the Commission might support some such proposition" (i.e. that in the circumstances the mere presence of the deceased in the van was an incident of his employment) "I am of the opinion that neither the language of the Workers' Compensation Act, nor the principles established by the decisions of the appellate courts, justify an interpretation of the phrase "in the course of employment" that would place a worker engaged for fixed hours during the day and living for his convenience, or for the convenience of himself and his employer, in accommodation owned or provided by the employer, in such a relationship to his employer that the course of employment embraces the whole period of his presence in and use of that accommodation."

The minority opinion of the Supreme Court expressed by the learned President of the Court of Appeal Division was that "his" (the deceased's) "sleeping therein" (in the van) "in all the circumstances was reasonably incidental to his employment. On this aspect I consider there is scarcely room for doubt in the light of modern authority". But the President thought that some further elaboration was necessary of the actual cause of the fire which in turn caused the death of the worker.

No doubt even when a workman's presence at some particular place at or in which he has no duty to perform for his employer is in the circumstances of his employment incident to that employment, every injury sustained by him at the place will not be compensable. But in this case there is no room for any finding that the deceased at the time of the receipt of his injury was doing any particular thing which caused or contributed to that injury. Nor could any finding of misconduct be made adversely to him or to his dependants. Thus, if to use the van as his nightly residence whilst working at a place whence he could not reasonably be expected to return to his home was an incident of his employment, an injury attributable to that use and to no other activity could be regarded as occurring in the course of the employment. As I have indicated, the evidence, in my opinion, would justify a finding that he died whilst sleeping or at least resting which on that assumption would be a use of the van in the course of the employment. Thus, if it be right to conclude that the course of his employment extended to the use of the van as a dormitory during week nights, no further examination of the facts would be called for in this case. His sleeping or resting in the van was part of its use as such a residence.

The question, the answer to which will be decisive of this case, is whether it could properly be found in the circumstances I have outlined that it was in the course of his employment with the respondent for the deceased to live in the van on week nights whilst employed as a peripatetic carpenter, doing maintenance and repairing work at places along the railway line. I am unable to see in the evidence any basis on which it could be found that the injury to the deceased arose out of his employment. Some endeavour seems to have been made before the Workers' Compensation Commission to establish that the van and its contents exposed the occupant to some added risk above that which living elsewhere would involve.

Kitto and Taylor JJ. in O'Brien v. The Commonwealth [1] found evidence to warrant such a conclusion in the nature of the bathing facilities which the workman had to use in a camp in which he was bound by the terms of his employment to reside, in order to conform to the standard of hygiene required of him whilst so residing, but I do not understand their reasons to deny that the use of the camp in that case was in the course of the employment. The kerosene refrigerator and its condition were among some of the features of the van in this case put forward as comparable with the facts of O'Brien's Case [1] constituting an added risk. But, in my opinion, in any case this was not made out. No finding of added risk was open on the evidence. Further, I am far from thinking that if it were not in the course of his employment to live in the van that even added risk in using it would justify a finding that his injury arose out of his employment.

1. (1967) 117 C.L.R. 66, at p. 76. 2. (1967) 117 C.L.R. 66.

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 strict views expressed in such a case as Philbin v. Hayes [2] , are no longer valid, in my opinion, for the solution of such a problem in Australia as is posed in this case. The course of an employment, to use the language of Dixon J. in Henderson v. Commissioner of Railways (W.A.) [3] , includes the doing of "whatever is incidental to the performance of the work" and will include what he "is reasonably required, expected or authorized to do in order to carry out his actual duties". Thus it may include being at a place at which the workman's presence "is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment". In applying such a statement to the facts and circumstances of a particular case, its elements, in my opinion, should be applied liberally and practically. Therefore, in relation to injuries occurring to workmen living in temporary accommodation provided by the employer at or near the place of employment, the liability of the employer cannot be determined, in my opinion, simply by deciding whether or not the employee was contractually bound to live in the accommodation so provided. Nor is it enough, in my opinion, to exclude the use of the employer-provided accommodation from the course of the employment to establish that there was other accommodation of some kind available in the vicinity of the place of work. Of course, if the use of the employer's accommodation is the result of a real choice made by the employee as between that accommodation and other accommodation of a suitable kind which it would be practicable in all the circumstances for the employee to use, it may well be said that the result of his choosing the employer's accommodation does not extend the ambit of the course of his employment. But the choice must be real and, to use the expression in Goward v. The Commonwealth [1] , not "theoretical". To tell a workman employed by the respondent as a rough carpenter that there was an hotel in the nearby town or village is scarcely to offer him in his situation a real alternative to living in the accommodation supplied by the respondent. To constitute a meaningful choice the alternative accommodation must, in my opinion, be of that kind which an employee in the circumstances would consider using. It seems to me that such an aspect of the matter had insufficient attention in cases such as Philbin v. Hayes [2] ; Allen v. Minister for Public Works [3] ; Guinan v. Commissioner for Railways [4] . For my part, I prefer the approach made by Crisp J. in Jones v. Attorney-General (Tas.) [5] , when he says "no other practical accommodation was available".

1. (1918) 87 L.J.K.B. 779. 2. (1937) 58 C.L.R. 281, at pp. 293, 294. 3. (1957) 97 C.L.R. 355, at p. 364. 4. (1918) 87 L.J.K.B. 779. 5. [1941] W.C.R. 239. 6. [1949] W.C.R. 135. 7. [1957] Tas. S.R. 36, at p. 54.

One other general consideration ought, in my opinion, to be borne in mind in resolving a case such as the present. What may be in the course of the employment is referable to the general nature 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. Dixon J. observed upon this aspect of the matter when in Henderson v. Commissioner of Railways (W.A.) he said [6] :

For the most part, a camp is a necessity because the gang's work lies in places where otherwise they could not be got to their work. It happened that they had come to a township, but this accident cannot, I think, make the use of a camp less incidental to the general employment Thus, in the present case, it would not be right, in my opinion, to judge whether living in the van was in the course of the employment, simply by considering the situation of the deceased at Coolac even if there were accommodation there of a kind that the deceased in his circumstances might reasonably be expected to use. It is necessary, in my opinion, to judge that matter in relation to his employment in general, requiring him, as it did, to work at places remote from all accommodation. If it were in the course of his employment to reside in the van when he was working at a place on the railway line where as a practical matter there was no accommodation available to him, then, in my opinion, it could also be in the course of the employment to reside in the van when working as he was on this occasion proximately to a centre of population. Proximity on some occasion to available accommodation would seem to me to be accidental in relation to the course of a peripatetic employment of the nature of that in which the deceased was engaged and not to cause the use of a dormitory such as the respondent provided to fall outside the course of the employment. But, of course, the case will be different if material exists on which it could be found that notwithstanding the relationship in general existing between the employment and the use of the dormitory there was on the part of the workman a choice for other than employment reasons to use the dormitory rather than other accommodation practically available. In my opinion, there was no such material in this case. 1. (1937) 58 C.L.R., at p. 295.

In my opinion, the evidence before the Commission warrants the conclusion that to do the work of a rough carpenter maintaining and repairing railway property along a length of railway line at places of work remote from available accommodation, it was necessary in a practical sense for the deceased to live on the job. The respondent in anticipation of this necessity provided the van and its contents as a place of residence on week nights so that the deceased might live on the job as conducive to its performance. The respondent expected the deceased to use the van as living quarters during his working week. These facts are adequate, in my opinion, to support the conclusion that using the van as such living quarters on week nights was in the course of the employment.

In my opinion, what was said in Goward v. The Commonwealth [1] , supports this conclusion. Having regard to that case, the decision in Commissioner for Railways v. Lollback [2] is not to be supported, in my opinion, upon the grounds taken by the Court which decided it. The reasoning of Crisp J. in Jones v. Attorney-General (Tas.) [3] finding the criteria in the practical necessities and mutual expectation of the parties is, in my opinion, to be preferred, though I would support the conclusion which his Honour reached in that case without deriving any support for it from the fact that the accommodation there in question was also used as an office.

1. (1957) 97 C.L.R., at p. 364. 2. (1955) 55 S.R. (N.S.W.) 251; 72 W.N. 266. 3. [1957] Tas. S.R. 36.

For these reasons, I am of opinion that this appeal should be allowed and the award of the Commission restored on the footing that the death of the appellant's husband occurred in the course of his employment with the respondent.

The appellant brought proceedings in the Workers' Compensation Commission of New South Wales against the respondent to recover compensation for herself and the dependent children of James Francis Danvers in respect of his death as the result of an injury which she claimed fell within the definition of injury in s. 6 (1) of the Workers' Compensation Act. The deceased man, at the time of his death, was working under a contract of service with the respondent in the trade of a rough carpenter and he and the respondent were "worker" and "employer" within the meaning of the Act. Section 7 (1) (a) says:

A worker who has received an injury whether at or away from his place of employment (and in the case of the death of the worker, his dependants) shall receive compensation from his employer in accordance with this Act. Section 8 (1) says: Where death results from the injury, and the worker leaves any dependants wholly dependent upon his earnings, the amount of compensation payable by the employer under this Act shall be (The rates of the compensation payable are set out in the subsequent provisions of this subsection.) "Injury" is defined by s. 6 (1). This definition applies to injury in s. 7 (1) (a) and s. 8 (1). The material words of the definition are: " "Injury" means personal injury arising out of or in the course of employment." The learned judge found that the appellant's husband, James Francis Danvers, died "as a result of an injury arising both in the course of and out of his employment". There was no contest as to whether the appellant and the other claimants were dependants. Compensation was awarded in accordance with s. 8 (1).

The award was the subject of an appeal by the Commissioner for Railways to the Supreme Court of New South Wales, pursuant to s. 37 (4) of the Act. The right of appeal under the Act is confined to questions of law. The appeal raised only the question whether the evidence was sufficient in law to support the finding regarding the injury which resulted in the worker's death. The Supreme Court allowed the appeal and set aside the award. In the present appeal the widow of the deceased man claims that the Supreme Court fell into error.

The evidence is set out fully in the judgment of the Workers' Compensation Commission. It appeared that the deceased man received the injury in a railway van then standing on the siding at Coolac, a town in New South Wales. The van was a unit of railway rolling stock. It had been fitted out to provide lodging for two workmen. The deceased man made the van his abode while working at Coolac. Previously he had been working at Muttama. The van was then on the siding at that station and the van was likewise his abode while working under his contract of service at that place. When the deceased was transferred, the van was shunted to the siding at Coolac. These and other places where the deceased had worked under his contract were so far from the deceased's home that it was not practicable for him to reside there except at the week-end. It was the practice to pull the van from place to place to be available as a lodging for the deceased and other workmen. The deceased was the only occupant of the van on this occasion at Coolac.

There was no evidence of the cause of the fire which burnt out the van. The finding of the trial judge regarding the injury depended upon the fact that the deceased was in the van when he was burnt to death. There was evidence that he came into the van in the evening some time after knocking off work, and that his remains were found alongside the framework of his bed when the fire had been extinguished. It also appeared by the evidence that the van was seen to be on fire a few hours after the deceased retired there that evening. The van was under the control of the local stationmaster. The deceased was given one of the keys. Besides the furniture and household appliances which the Railway put in the van, there were some tools and stores.

The submission for the appellant is that the award should be restored for the reason that the burns and other hurt suffered by the deceased in the van fell within the words of the definition of "injury". The submission was confined mainly to the words: "personal injury arising out of or in the course of employment". "Employment" in this context includes the incidents of the employment of the worker concerned. (See Kavanagh v. The Commonwealth [1] .)

It seems to me to be open to find on the evidence that the van was fitted out as a lodging designed to be kept on a siding accessible to workmen authorized to use it; further, that it was a lodging intended to be lived in by the deceased worker while carrying out work under his contract of service at Coolac. Besides its use by him for his personal convenience, his living in it would seem to be, in the light of the evidence, an arrangement subsidiary to his contract to work as a rough carpenter in this locality. In my opinion the evidence shows prima facie that the worker received in the van an injury to which s. 7 (1) (a) applies, and because it resulted in his death, an injury making the employer liable prima facie to pay compensation to the worker's dependants. In order to disentitle them to compensation, the onus was on the respondent to show that the worker did something relieving the employer (respondent) from liability under s. 7 (1) (a). (See Nunan v. Cockatoo Docks & Engineering Co. Ltd. [1] .) Section 7 (3), which is expressed as a proviso, sets out matter on proof of which, by the employer, compensation may be disallowed. The employer in this case did not raise a defence under par. (c) of that provision.

I would vary the finding of the judge by excising the words "both" and "and out of" from finding 1 (a) in the award. I agree that the appeal should be allowed.

I agree in the judgment of the Chief Justice and there is nothing that I wish to add.

The appellant's husband, a worker employed by the Commissioner for Railways (N.S.W.) as a rough carpenter, died from burns and carbon monoxide poisoning which occurred accidentally while he was living in a railway van which had been converted by his employer to provide him with living quarters. The van was moved from place to place to accommodate the worker near his work at different places. The worker was allowed to use the van but was not obliged to do so. The van was burnt. When the fire occurred it was on a railway siding about a quarter of a mile from the railway station at Coolac, a small country town. The cause of the fire was not ascertained. It is possible that it originated from a kerosene refrigerator in the van which had been provided by the Commissioner; it might have been caused by a dropped cigarette; it might have happened in other ways. Any finding about this occurrence, upon the evidence given, would be no more than conjecture.

On the day of the accident, which happened at night, the deceased worker ceased work at about 4.00 p.m. in the afternoon and had no further duties until the following morning. His time was his own. All that is known of his actual doings is that, having been at a local hotel, he was driven to the van at about 7.00 p.m. The van was seen to be on fire at about 10.30 p.m.

Upon a claim for workers' compensation by the widow of the deceased worker, the Commission found that the deceased sustained an injury arising both out of and in the course of his employment. Upon appeal the Court of Appeal of the Supreme Court of New South Wales set aside the Commission's award in favour of the claimant and by a majority replaced it by an award in favour of the Commissioner. It is from the order of that Court that this appeal is brought.

I am satisfied that the finding that the worker suffered injury arising out of his employment cannot be supported. All that can be said is that the worker suffered an injury while he was in the van provided as living quarters by his employer. It is, of course, true that the deceased would not have been where he was but for his employment, but this circumstance is not enough to warrant the finding of a causal relationship between the work and the injury. If it were, then every accident that happened while a person was at work would arise out of his employment. This is not so. An injury may arise in the course of a worker's employment which does not arise out of it. The mere fact that an accident happens at work does not bring that accident within the category of an accident arising out of the employment. Kavanagh v. The Commonwealth [1] provides an instance of this. The accident there did arise in the course of the worker's employment because it happened at work; that accident did not, however, arise out of the worker's employment. See too Goward v. The Commonwealth [2] . A finding that a worker's employment brings him within some special risk which eventuates and causes injury may warrant the conclusion that the accident arose out of the employment but there was no evidence in this case to show that the accident happened by reason of the deceased's employment. The accident arose from a fire of unknown origin and there was no evidence that the deceased died as he did because of special risk associated with his employment.

1. (1960) 103 C.L.R. 547. 2. (1957) 97 C.L.R. 355.

It is perhaps a more difficult question whether the deceased's death arose in the course of his employment, but I have come to the conclusion that it did not.

It is now established that a worker is in the course of his employment when he is working or doing something incidental to his work. In this case the deceased was not working and I do not think that any time he might spend in the van doing whatever he might choose to do could be regarded as incidental to his work. It is not known what the deceased was doing before the fire broke out but if it be supposed that he was sleeping, how could it be said that his sleeping was incidental to his work? A worker who goes home at night and sleeps is outside the course of his employment; so, I think, is a worker who ceases to work and, in his own time, goes to bed in accommodation provided for him, even if that accommodation is upon his employer's premises. It would, of course, be a different case if the worker had been under some duty to be where he was or if there was evidence of some link between the fire and the deceased's employment other than the mere fact that the van was provided by his employer.

I do not find myself constrained by authority to come to any conclusion different from that which commends itself to me as a matter of principle. The judicial observations most in the appellant's favour are to be found in Goward v. The Commonwealth [1] . There a worker who lived in a P.M.G. camp was killed upon a railway line nearby. It was decided that a claim for compensation could not succeed, but in the majority judgment it was said:

Logically there is of course a preliminary question, namely, whether the deceased's living in the camp fell within the general conception of the "employment". But upon this question there could hardly be any doubt. Theoretically he could live where he liked so long as he was at hand to attend to his actual duties. But this was an entirely theoretical proposition. The postal department recognised the necessity of a camp, established and regulated camps, organized camping parties and paid a camping allowance. To live in the camp may therefore be regarded as an incident of the employment [2] . 1. (1957) 97 C.L.R. 355. 2. (1957) 97 C.L.R., at p. 364.

It was argued here that in a similar way the deceased's living in the truck should be regarded as an incident of his employment. In Goward's Case [1] , however, the court was not considering the question whether the injury arose in the course of the worker's employment at all. It is clearly assumed that it did not. What the court was examining was whether it could be found that the accident arose out of the employment. As to this the majority said:

The question is one of cause, but it is not enough to point to antecedent situations in the absence of which there could not have been an accident of the description involved. It is correct no doubt that if the camp had not been near a railway and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.

No special risk attached to the employment simply because the camp was near the railway [2] .

1. (1957) 97 C.L.R., at p. 364.
   1. (1957) 97 C.L.R. 355.
   2. (1957) 97 C.L.R., at p. 364.

I do not regard what was said in Goward's Case as establishing that whatever a worker does while living in a camp provided by his employer is incidental to his employment so that any injury suffered in the camp arises in the course of the worker's employment. Furthermore, the observation which was made was confined to a case where the necessity of a camp having been recognized by the employer it "established and regulated camps, organized camping parties and paid a camping allowance".

I do not find it necessary, nor do I think that it would be helpful to examine the many cases cited to us. Each one turns very much upon its own facts and it may be that there is room for a difference of opinion about the correctness of the conclusion drawn from the evidence in some of them. With that I am not concerned. Finally the question is always whether the injury by accident arose while the worker was working or doing something incidental to his work, and in this case, for the reasons which I have given, I agree with the Court of Appeal that the evidence did not justify the finding that while he was occupying the van when it burned he was doing something incidental to his work.

I agree in the judgment of the Chief Justice. Whether or not when a worker suffered an injury he was in the course of his employment, as that expression is now understood in Australia, does not depend upon whether or not he was at the time actually at work, or whether he was on duty or off duty, to use expressions appropriate in other circumstances and for other purposes. Doubtless the question in every case is one of fact and degree. The determination of it is not, I think, much aided by looking at other cases; but I have found the survey which Crisp J. made of earlier decisions and his judgment in Jones v. Attorney-General (Tas.) [1] very helpful.

It seems to me that whether a worker's presence where he was when he was hurt was in the course of his employment cannot depend at all upon whether he had a contractual obligation to be there then, or whether he would have been free to be somewhere else had he wished. That is a consideration which could weigh in arriving at a decision as to the scope and course of employment; but it is not definitive of it. A worker who is using a place provided for his use by his employer as an incident of his employment is ordinarily in the course of his employment if he is using it for the purpose for which it was made available to him at and a time when he might be expected to do so. It may be a sleeping place, a luncheon place or a shower-bath. That he had no contractual obligation to sleep there or to eat lunch or to take a bath would not put him outside the course of his employment if he chose to avail himself of the facilities provided instead of sleeping elsewhere, going out to lunch or home for a bath. Circumstances might alter cases of course. But I can see no circumstance which made the deceased man's occupation of the accommodation provided other than an incident of his employment.