Girlock (Sales) Pty Ltd v Hurrell

One evening in the winter of 1978 Graham Humphrey Hurrell, the manager of a branch of Girlock (Sales) Pty Ltd, was driving home from work. His journey home took him in a westbound direction along a multi-lane undivided highway. While travelling west along that highway his car somehow came to be broadside across the eastbound lanes and slid sideways in a westerly direction towards oncoming eastbound traffic. While thus at right angles to the opposing traffic flow it collided with an eastbound car; in consequence Hurrell suffered serious disabling injuries. The road surface was wet although it was not raining at the time.

Hurrell had been travelling on a regular, daily or periodic journey between his place of employment and his place of residence, to use the language of the Act, and he made a claim for workers' compensation accordingly. His claim was dismissed by the Board on the ground that his injury was not suffered without any substantial default or wilful act on his part.

The Board, at Hurrell's request, stated a case to the Full Court of the Supreme Court of Western Australia posing the following two questions of law:

(a) Was there any evidence on which the Board could find that the personal injuries suffered by the applicant were not suffered by him without substantial default and wilful act on his part?

(b) Did the Board err in law in holding that the applicant was not entitled to receive Worker's Compensation pursuant to s. 7(1a) of the Workers' Compensation Act in respect of the personal injuries suffered by him which resulted in serious and permanent disablement and which were not suffered without substantial default and wilful act on his part notwithstanding the provisions of s. 7(2)(c) of the Workers' Compensation Act?

By a majority, Burt C.J. dissenting, the Full Court answered in the negative the first question, concluding that there was no evidence upon which the Board could find that the personal injuries suffered by Hurrell were not suffered by him without substantial default and wilful act on his part. Stripped of its surfeit of negatives, this question and answer involves a finding that there was no evidence of substantial default or wilful act by Hurrell such as would disentitle him to compensation.

The second question asked by the Board, which is confined to a matter of statutory interpretation and is the subject of the present cross appeal, was not answered by the Court. Consideration of it may for the moment be deferred.

The first question arises from the terms of s. 7(1a)(a)(i) of the Act which is as follows:

(1a) Without limiting the generality of subsection (1), but subject to the succeeding provisions, of this section, a worker is deemed to have suffered personal injury by accident arising out of or in the course of his employment where -

(a) the worker suffers a personal injury without any substantial default or wilful act, on his part, while he is travelling on any regular, daily or periodic journey -

(i) between his place of residence and place of employment.

It is not in dispute that the employer carries the onus of establishing the existence of "substantial default or wilful act". What is in issue is whether in the present case there was any evidence upon which the Board could reach its conclusion adverse to the worker.

After the accident a blood alcohol analysis of Hurrell's blood gave a reading of 164 per cent, and it was not in contest between the parties that if Hurrell indeed had so high a concentration of alcohol in his blood it would have severely impaired his ability to drive his car. However, the members of the majority in the Full Court held that the absence of any evidence linking Hurrell's state of insobriety with the behaviour of his car immediately before the collision was fatal to the employer's defence based upon "substantial default or wilful act". One member of the majority, Jones J., added that the wet road surface was in itself enough to supply a possible explanation of the car's behaviour, thereby excluding any inference that it was due to Hurrell's impaired ability as a driver.

The Chief Justice, on the other hand, considered that the evidence excluded as a cause of the behaviour of the car any defect in the car or its tyres; he noted that the road surface, although wet, was not said to be slippery. There remained only the severely impaired ability of Hurrell to drive and control the car and it was open to the Board to conclude that this was a cause of the accident.

On this appeal the appellant adopts the Chief Justice's approach whereas the respondent not only attacks that reasoning but also makes two distinct submissions regarding matters of evidence. These two submissions must, however, surmount a substantial initial hurdle: the absence from the record of any transcript of the evidence before the Board; due to some malfunction of the recording system all that is available are somewhat fragmentary notes of evidence together with the Board's reasons for decision, which themselves give some narrative account of the evidence.

The first of these two submissions was that there was no sufficient evidence linking the blood which was tested and showed a high alcohol content with the sample taken from Hurrell. This was a matter of which the Board showed itself to be well aware; in its reasons it said that Hurrell's intoxication required to be "properly proven" and went on to refer in some detail to the evidence regarding sampling, analysis and expert conclusions drawn from the results of such analysis. It made mention of searching cross-examination by Hurrell's counsel and of his submission that there could have occurred a "possible mixing of blood samples". Its conclusion was that while "there is possibility of error", so impressive was "the evidence of systems used and the calibre of the witnesses that we can only find it to be highly improbable". In the absence of any proper record of the evidence before the Board the submission cannot succeed in the face of these statements appearing in the Board's reasons, which form part of the stated case.

The second submission, as I understand it, takes up the question of how Hurrell's car came to be sliding sideways into the path of oncoming traffic and puts forward as factors the possibility that a rear tyre blew out before the collision, that the weather was very bad and the road wet and that in those conditions the car might well veer over to the wrong side of the road and slide broadside down it without fault on the driver's part. The question is not, however, whether there was evidence upon which the Board might have come to a different conclusion; rather, it is whether there was evidence upon which it might come to the conclusion it did. Evidence about one of the rear tyres was conflicting. Two witnesses who examined and reported on the state of the car after the accident described one of its rear tyres as deflated due to a fifteen centimetre cut in the tyre, which each described as caused by the impact with the other car. That another witness who examined the car saw no marks of the tyre having been struck is not to the point. It was open to the Board to prefer the evidence of the other two witnesses and this it clearly did: its reasons describe as merely speculative the assumption that any skidding of the car took it over to the wrong side of the road. It follows that this submission must also fail; it was clearly open to the Board to arrive at a conclusion which in effect rejected the view that a blow out of a rear tyre, occurring before the accident, caused the car, in the wet conditions, to skid over onto the wrong side of the road.

There remains the basic difference between the approaches of the majority and of the minority of the Full Court. It lies in the answer to the question whether or not it was open to the Board to regard Hurrell's drunken state as a cause of his car behaving as it did. It was clearly open to the Board to dismiss as causes of the accident mechanical defects of the car or any blow out of a tyre; nor was there any evidence that the condition of the road caused it, still less that the act of any other person or vehicle or of any forces of nature might have led to the collision. Nevertheless, says the respondent, to attribute the accident to Hurrell's drunken condition is mere conjecture. The appellant replies that it is, in the circumstances, no conjecture but rather a reasonable inference open on the evidence and one which is made the more reasonable by the elimination of other possible causes. The step from absence of ability properly to control to that of absence of proper control, the state which characterized the behaviour of the car immediately before the accident, is said to be both short and permissible.

This is not a case of mere competing possibilities, no instance of "a choice among rival conjectures", such as Dixon C.J. spoke of in Jones v Dunkel [1] . Here there exists what Dixon C.J. there referred to as "evidence supporting some positive inference an inference which arises as an affirmative conclusion from the circumstances proved in evidence". His Honour went on to cite a passage from the unreported decision of five members of this Court in Bradshaw v McEwans Pty Ltd [2] which is rather more fully reproduced in the report of Holloway v McFeeters [3] ; speaking of civil cases, the passage reads:

"you need only circumstances raising a more probable inference in favour of what is alleged where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson Richard Evans & Co. Ltd. v Astley [4] . All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood". At p. 305 of Jones v Dunkel Dixon C.J. added these observations: But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. 1. (1959) 101 C.L.R. 298, at p. 304. 2. Unreported; 27 April 1951. 3. (1956) 94 C.L.R. 470, at pp. 480-481. 4. [1911] A.C. 674, at p. 687.

This Court recently had occasion in West v Government Insurance Office (N.S.W.) [5] to cite these observations of his Honour, at the same time referring to the judgment of Gibbs J. in T.N.T. Management Pty Ltd v Brooks [6] . To apply these principles to the present case is to conclude that the circumstances do give rise to a "reasonable and definite inference" that Hurrell's intoxication was a cause of the accident. The judgments of other members of the Court in Jones v Dunkel, notably those of Kitto J. [7] , of Menzies J. [8] , and of Windeyer J. [9] , furnish further support for this view. It follows that it was well open to the Board to reach the conclusion it did; Burt C.J. was in my view correct in the affirmative answer which he proposed to the first question asked in the stated case.

1. (1981) 148 C.L.R. 62, at p. 66. 2. (1979) 53 A.L.J.R. 267, at p. 269. 3. (1959) 101 C.L.R., at pp. 305, 308. 4. (1959) 101 C.L.R., at pp. 309-310. 5. (1959) 101 C.L.R., at pp. 319-320.

The second question concerns the effect of s. 7(2)(c) of the Act which is as follows:

(c) if it is proved that the injury to a worker is attributable to the serious and wilful misconduct of that worker, any compensation claimed in respect of that injury shall be disallowed unless the injury results in death or serious and permanent disablement;

The respondent contends that the words "but subject to the succeeding provisions, of this section" in s. 7(1a) have the effect of subjecting the terms of that sub-section to those of sub-s. (2). This is said to mean that if, as in the present case, injury results in "serious and permanent disablement" then, although a worker's injury is attributable to his "serious and wilful misconduct", his entitlement to compensation is not thereby defeated.

It may be accepted that what amounts to "substantial default or wilful act", the phrase in sub-s. (1a)(a), will in many, perhaps in all, cases answer the description of "serious and wilful misconduct" used in sub-s. (2)(c). So that if sub-s. (2)(c) were capable or operating in cases in which a worker, injured while journeying between residence and employment, was guilty of "substantial default or wilful act", he might nevertheless recover. But sub-s. (2)(c) can never so operate. An injury suffered by a journeying worker becomes compensible if the deeming provisions of s. 7(1a) operate to make it so. Only then will there exist any such injury as sub-s. (2) speaks of and to which its terms can apply. That is to say, there must first be some injury which is prima facie compensible in character, a character which it may possess either because it falls within s. 7(1) or within the deeming provisions of s. 7(1a), before one turns to s. 7(2): the deeming process provided for in s. 7(1a)(a) is anterior to and is a pre-condition of any operation of sub-s. (2) upon sub-s. (1a). Where there exists "substantial default or wilful act" on the part of the worker the terms of sub-s. (2) can then never come into operation. The present is just such a case.

The point is both short and, at least to my mind, capable of only one answer, that for which the appellant contends and which was given by the Full Court of the Supreme Court of Western Australia in Howard v Evender Holdings Pty Ltd [10] , a decision which the respondent recognizes that he must overturn if he is to succeed. It may be noted for good measure that, as the appellant points out, the words in s. 7(1a) which refer to "the succeeding provisions of this section" could not, before the amendment of s. 7(2) in 1970, have had the effect for which the respondent contends; until then sub-s. (2) did not contain an exception in relation to death or serious and permanent disablement. While not in itself conclusive, this circumstance supports generally the view which I have expressed above: to amend only sub-s. (2), depending upon the existing words of sub-s. (1a) to carry the effect of that amendment into the journeying provisions of sub-s. (1a), and, moreover, to do so by the introduction of an exception to the proviso represented by sub-s. (2)(c), would indeed be a curiously indirect method of affecting a radical alteration of sub-s. (1a). It follows that the second question should be answered in the negative.

I would allow this appeal and restore the decision of the Board: the questions stated should be answered as follows: (a) Yes. (b) No.

This appeal from the Full Court of the Supreme Court of Western Australia is on a case stated by the Workers' Compensation Board of Western Australia.

The respondent was at all material times employed by the appellant. On the evening of 8 June 1978 the respondent was driving home from work in a westerly direction on the Great Eastern Highway, which at that point is divided into four lanes. Although it was not raining, it had been shortly before, and the surface of the road was still wet. At the same time one Whitney was driving in an easterly direction on the highway in the right-hand lane of the two east-bound lanes. Whitney noticed the respondent's vehicle sliding towards him at right angles across both east-bound lanes. He was unable to avoid the respondent's vehicle and the two vehicles collided. The respondent suffered severe injuries in the collision. He was unable to remember anything about the accident.

After the collision a sample of blood was taken from the respondent and subjected to a blood alcohol analysis which revealed a percentage reading of 0.164 for whole blood. The Board accepted that this analysis and calculations based on it established the fact that the percentage of alcohol in the respondent's blood at the time of the accident was between 0.12 and 0.15. Medical evidence was tendered to the effect that that percentage of alcohol in the blood would severely impair the ability to drive a motor vehicle.

The respondent claimed compensation from the appellant under the Workers' Compensation Act, 1912-1978 WA ("the Act"). Section 7(1) of the Act provides:

If in any employment personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions, is caused to a worker, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule. Section 7(1a) then provides: Without limiting the generality of subsection (1), but subject to the succeeding provisions, of this section, a worker is deemed to have suffered personal injury by accident arising out of or in the course of his employment where -

(a) the worker suffers a personal injury without any substantial default or wilful act, on his part, while he is travelling

on specified journeys, unless the injury is incurred during or after a substantial interruption of, or substantial deviation from, the journey, made for any reason unconnected with his employment.

There is a proviso in s. 7(2) which is also material:

(c) if it is proved that the injury to a worker is attributable to the serious and wilful misconduct of that worker, any compensation claimed in respect of that injury shall be disallowed unless the injury results in death or serious and permanent disablement;

The Board held that the respondent was disqualified under s. 7(1a) from claiming compensation, finding that the injury suffered by him was not suffered "without any substantial default or wilful act, on his part". The Board based this finding on the conclusion that the respondent "drove his car while in a condition prejudicial to safety" and on the fact that the respondent was seen to drive on the incorrect side of a busy highway, this being an act which "not merely invites but almost compels accident".

The Board further held that absence of "any substantial default or wilful act" on the part of a worker is a condition precedent to a claim for compensation under s. 7(1a) and that the proviso in s. 7(2)(c) has no relevant application in circumstances where the applicant does not comply with s. 7(1a).

Pursuant to s. 29(9) of the Act the Board asked two questions of law on a case stated for the decision of the Full Court. These were:

(a) Was there any evidence on which the Board could find that the personal injuries suffered by the applicant were not suffered by him without substantial default and wilful act on his part?

(b) Did the Board err in law in holding that the applicant was not entitled to receive Workers' Compensation pursuant to Section 7(1a) of the Workers' Compensation Act in respect of the personal injuries suffered by him which resulted in serious and permanent disablement and which were not suffered without substantial default and wilful act on his part notwithstanding the provisions of Section 7(2)(c) of the Workers' Compensation Act?

The Full Court by majority (Wickham and Jones JJ.; Burt C.J. dissenting) answered the first question in the negative. Consequently they found it unnecessary to answer the second question. Against that decision the appellant now appeals to this Court. The respondent provisionally cross appeals in relation to the second question depending on this Court's answer to the first question.

Before this Court the parties were in agreement that, by virtue of the evidence relating to the alcohol content of the respondent's blood and also the evidence as to the effect of such an alcoholic content on the ability to drive a motor vehicle, there was evidence before the Board on which it could find that the respondent's ability to drive a motor vehicle at the time of the accident was severely impaired. Nor was there any challenge to the Board's conclusion that for the respondent to drive in his intoxicated state amounted to "substantial default or wilful act". However, the real question in s. 7(1a)(a) is one of causation: Darling Island Stevedoring & Lighterage Co. Ltd. v Jacobsen [11] . The appellant relies on the evidence that the respondent's ability to drive at the time of the accident was severely impaired as evidence before the Board on which they could find a causal link between the "substantial default or wilful act" of the respondent and the personal injuries which he suffered.

It will be recalled that the Board found a second basis for a "substantial default or wilful act" - that to drive on the incorrect side of the highway in itself almost compelled the collision. If this finding were to be accepted the causal link between default and injury would be established automatically and it is therefore necessary to examine its validity even though it was not the subject of argument before us. It seems to me that the finding cannot be maintained. In Bagot v Commissioner for Railways [12] Jordan C.J., speaking of the phrase "default or wilful act" in s. 7(1)(b) of the Workers' Compensation Act 1926-1942 NSW, a provision similar to s. 7(1a), though it did not contain the adjective "substantial", said:

In its present context, the purpose of the phrase is to relieve employers in certain circumstances from liability which is otherwise cast upon them to compensate employees for disabling injuries which they received whilst travelling to or from their place of employment. In these circumstances, I think that "default" means failure by the worker to comply with a legal duty to be careful, the failure being of a kind inherently likely to cause disabling physical injury to himself, and in fact causing or contributing to the injury in question. 1. (1943) 44 S.R. (N.S.W.) 173, at p. 175.

This statement implicitly denies the proposition that an involun tary act can constitute a "default", let alone a "substantial default". To drive on the incorrect side of the highway could, for many reasons, be a purely involuntary act and thus not in itself the subject of a "substantial default or wilful act". Of course, this Court can only set aside a finding of the Board which was not open on the evidence. But, putting aside the respondent's intoxication as a separate issue, for my part I cannot see that there was any evidence which went to establishing that the respondent's behaviour in driving on the wrong side of the highway amounted to a default. The respondent's intoxication must be seen as a separate and distinct issue because, even if he was on the wrong side of the highway as a consequence of his intoxication, that is not the same thing as saying that his behaviour in so doing in itself amounted to a "substantial default or wilful act" under the Act.

I return to the question of whether there was any evidence before the Board which was directed to demonstrating a causal link between the respondent's inability to properly control his vehicle and the injuries which he suffered.

The test of causation to be used in s. 7(1a) causes some difficulty. Under the old New South Wales provision, s. 7(1)(b), to which I have already referred, it was held that the employer needed to show no more than that the accident was partly caused by the default or wilful act; that the default or wilful act substantially contributed to the injury: see Hall v J. & A. Brown and Abermain Seaham Collieries Ltd. [13] ; Bagot [14] ; and see generally Mills, Workers Compensation (N.S.W.) (1969), p. 272. That conclusion may have been easier to reach in New South Wales. There the phrase "solely attributable" was used in s. 7(3)(b), which is roughly equivalent to s. 7(2)(c) in Western Australia. The presence of this provision suggested perhaps that, by virtue of the maxim expressio unius est exclusio alterius, the requisite degree of causation in the earlier provision (s. 7(1)(b)) was something less than sole causation. In Western Australia the phrase used in s. 7(2)(c) is simply "attributable". Nevertheless, I think that the approach to causation adopted in New South Wales should prevail here. Under s. 7(1a)(a) the injury must be suffered "without any substantial default or wilful act". I read the provision as a statement that a substantial default on the part of the worker which contributes in a substantial way to the injury he suffers disqualifies him from compensation.

1. (1953) 88 C.L.R. 509, at p. 513. 2. (1943) 44 S.R. (N.S.W.), at p. 175.

Was there any evidence before the Board to establish that the severe impairment of the respondent's ability to control his vehicle contributed to the accident? This is the crucial issue.

There was no direct evidence which bore on the issue of causation. But there are settled principles which, though difficult in their application, allow inferences to be drawn from proven facts in certain circumstances. "Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves." (Holloway v McFeeters [15] ). What is required are circumstances which -

do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. See Bradshaw v McEwans Pty Ltd [16] ; Holloway [17] . See also Jones v Dunkel [18] ; Luxton v Vines [19] . 1. (1956) 94 C.L.R. 470, at p. 480. 2. High Court of Australia; Unreported; 27 April 1951. 3. (1956) 94 C.L.R., at pp. 480-481. 4. (1959) 101 C.L.R. 298. 5. (1952) 85 C.L.R. 352.

Counsel for the respondent contended that the circumstances of the present case did not go beyond the realms of mere conjecture. He said that there may be any number of reasons why there would be a sudden charge of direction in a vehicle. And in the Full Court Jones J. made the observation that on a slippery road it is not uncommon for a vehicle to behave as did the respondent's vehicle. This much may be conceded. But it seems to me that the evidence which was before the Board that the respondent's ability to control his vehicle was severely impaired was a vital piece of evidence which discounted the plausibility of those other possible causes. There was some evidence, for example, that a car may skid sideways as a result of sudden braking or acceleration. This may occur, said counsel for the respondent, because of some momentary inattention on the part of the driver. But once there is evidence that the driver's ability to control the vehicle was severely impaired that is "a reasonable basis for a definite conclusion affirmatively drawn", in the words of Dixon C.J. in Jones [20] , that it was the impairment of control and not some momentary inattention that was the cause of the accident.

This conclusion is strengthened when we recall that the impairment need only contribute in a substantial way to the accident. A person whose control of a sliding vehicle is unimpaired is more likely than a person whose control is severely impaired to be able to regain control of the vehicle. Of course, there is still the theoretical possiblity that some external cause completely displaced impairment of control. However, the evidence is against the possibility of mechanical defect as a cause and any other possibilities are mere conjecture which do not bear on the question of whether the inference that the impairment of control was the cause of the accident was more probable than not from the circumstances. For the Board to so conclude was not a choice between two guesses. It was "the most probable deduction from the established facts" and was a deduction reasonably drawn from those facts: see Holloway [21] , per Dixon C.J. Where there is no direct evidence of a fact it is not possible to attain entire satisfaction as to the true state of affairs. But where there is evidence directed to, not mere impairment, but severe impairment of the ability to control the vehicle, there is room for only one inference as to the cause of the accident. In saying this I have kept in mind that the only question which this Court has to decide is whether it was open to the Board to draw this inference. In this case there is a complete absence of evidence providing any reasonable basis for the inference that the sole cause of the accident was something other than the impairment. This does not involve a reversal of the onus of proof in any sense. The point is that such speculation cannot affect the conclusion that it was more probable than not that the severe impairment was the cause or partial cause of the accident.

Kitto J. in Jones [22] and Wickham J. in the Full Court stressed the point that generalizations cannot support specific inferences in relation to particular persons. That proposition can have no application in this case where there is agreement by the parties that there was evidence before the Board on which it could find that the ability of this particular respondent to control his vehicle at the actual time of the accident was severely impaired.

Richards v Faulls Pty Ltd [23] was a case directed to the "serious and wilful misconduct" proviso in s. 7(2)(c) of the Act. It provides a useful contrast to the present case. The case concerned a worker who died in an accident involving his car alone. There was evidence that his blood alcohol level at the time of the accident was between 0.11 and 0.12 per cent. The Full Court of the Supreme Court of Western Australia held that there was insufficient evidence to sustain a finding that the injury was related in terms of causation to the driver's misconduct. However, Hale J. [24] and Burt J. [25] both pointed to the significance of the fact that the evidence established nothing more than the blood alcohol content of the deceased worker and was not directed to the capacity of the deceased to drive the car. The distinction here is that this additional evidence was before the Board.

1. [1971] W.A.R. 129. 2. [1971] W.A.R., at p. 132. 3. [1971] W.A.R., at p. 134.

It follows that in my opinion there was evidence before the Board on which it could conclude that the respondent's injuries were caused by substantial default or wilful act on his part. I would therefore answer the first question in the case stated: "Yes".

I turn now to the second question. The Board found that compliance with s. 7(1a) is a condition precedent to an award of compensation pursuant to the journey provisions. Counsel for the respondent contended that s. 7(2)(c), though introducing a further disqualification from compensation for "serious and wilful misconduct", relieves a failure to comply with the condition precedent in cases of "death or serious and permanent disablement". However, the Board held that s. 7(2)(c) has no application to a case brought under s. 7(1a). In the Full Court Burt C.J. agreed with this view, following the recent Full Court decision in Howard v Evender Holdings Pty Ltd [26] , but Wickham and Jones JJ. did not find it necessary to address their minds to the question.

It must be said at once that anyone who seeks to ascertain the meaning of the provisions in question encounters an extremently difficult task. As Dixon C.J. said in Wilson v Wilson's Tile Works Pty Ltd [27] :

This particular enactment bears so much the impress of gradual and continual change, change no doubt proceeding from varying causes, that it is even more unsafe than it commonly is to reason a priori as to its meaning. 1. (1960) 104 C.L.R. 328, at p. 331.

Counsel for the respondent relied heavily on the words in s. (1a) "but subject to the succeeding provisions, of this section", saying that these words indicated that s. 7(1a) was subject to the relieving provision contained in the proviso in s. 7(2)(c). He contended that the critical phrase in s. 7(1a) cannot operate as a condition precedent because the succeeding provisions of s. 7, including sub-s. (2)(c), are called into effect and incorporated into sub-s. (1a) before the so-called condition precedent can have any relevant operation.

There is no doubt that on their face the provisions in s. 7(1a) are made subject to the later provisions in s. 7. And the opening words of sub-s. (2) - "Provided that" - clearly operate on their face as a proviso to all that has preceded that sub-section. However, s. 7(2)(c) is in form and substance a disentitling provision, which incorporates a relaxation of that disentitlement in the circumstances specified. It is natural to read the relaxation as relating only to the disentitlement contained in the proviso with which it is associated. Indeed, I see no basis for giving it an operation in relation to s. 7(1a) which is an entitling, not a disentitling or disqualifying, provision. The fact that it prescribes a condition precedent to the entitlement which it confers is not a reason for treating it as a disqualifying provision.

Had Parliament intended to relax the condition precedent in s. 7(1a) or provide for relief from non-compliance with it, separate provision would have been made in that behalf; either in s. 7(1a) itself or by means of another provision and not by the means selected. Furthermore, until the amendment of s. 7(2)(c) in 1970 that provision was simply a disqualifying provision with no relieving provision incorporated in it. To the extent that an examination of the legislative history of this Act can prove fruitful (see Geraldton Building Co. Pty Ltd v May [28] , per Stephen J.) this detracts from the significance which the respondent seeks to attach to the words "but subject to the succeeding provisions, of this section".

On the other hand, to read s. 7(2)(c) as inapplicable to the operation of s. 7(1a) raises a serious anomaly. The anomaly arises because the phrase "serious and wilful misconduct" in s. 7(2)(c) connotes a far more grievous breach by the worker than does the phrase "substantial default or wilful act": see Bagot [29] ; and see generally the cases cited and discussed by Mills at pp. 272-273. These cases concerned an interpretation of the phrase "default or wilful act" in the New South Wales Act. However, the additional word "substantial" in Western Australia does not in my mind affect the position. It follows that a worker who is guilty only of "substantial default or wilful act" would be disentitled to compensation under s. 7(1a), regardless of the seriousness of his injuries, but a worker whose conduct was sufficiently culpable to be considered as "serious and wilful misconduct" would receive compensation under s. 7(1) if his injuries amounted to a "serious and permanent disablement" within the meaning of s. 7(2)(c).

The decision of the Full Court in Howard followed this Court's decision in Wilson. The latter case concerned the provisions in s. 7(1)(b) in New South Wales after the 1951 amendment, which deleted "default and wilful act" and inserted "serious and wilful misconduct". The point which attracted the attention of the Full Court in Howard was the reference by Dixon C.J. to the position prior to the 1951 amendment. His Honour said that the disqualification in s. 7(1)(b) in its form at that time " was not then the same as the exclusion made by sub-s. (3)(b) and it was not in doubt that the later provision was irrelevant. That was taken for granted in Darling Island Stevedoring & Lighterage Co. Ltd. v Jacobsen " [30] .

The view expressed obiter in Wilson and the fact that it is difficult to see how non-compliance with a condition precedent to an entitlement under one provision can be subject to a relieving provision which is incorporated in an entirely separate and distinct disqualifying provision provide strong grounds for holding that s. 7(2)(c) of the Western Australian Act has no relevant application to the operation of s. 7(1a). The serious anomaly to which I referred may, in other circumstances, be considered to be a result which Parliament could not possibly have intended and which would affect the interpretation of the Act accordingly. But in the light of the warning of Dixon C.J. in Wilson relating to the dangers of a priori reasoning in regard to an Act which has undergone such constant change embodying numerous, and perhaps divergent, streams of legislative policy, in my opinion it is for the legislature and not for this Court to correct the anomaly.

I would answer the questions in the case stated as follows: Question (a): Yes. Question (b): No.

The first question. There was ample evidence to justify the Board's finding that the personal injuries suffered by the applicant were not suffered without substantial default and wilful act on his part.

The second question. In accordance with long tradition, workers' compensation legislation should be construed favourably to the worker. See Lysons v Andrew Knowles & Sons Ltd.; Stuart v Nixon & Bruce [31] ;McDermott v Owners of S. S. Tintoretto [32] ; Wood v Wood. [33] ; James Patrick & Co. Pty Ltd v Sharpe [34] ; Wilson v Wilson's Tile Works Pty Ltd [35] ; Bagot v Commissioner for Railways [36] ). On a strictly literal construction of the Workers' Compensation Act 1912-1978 WA the claim will be disallowed entirely if the injuries (even if resulting in death or permanent disablement) were not suffered without substantial default or wilful act on his part. However, in my opinion, the real intent to be gathered from these almost contradictory provisions (ss. 7(1a)(a) and 7(2)(c)) is that where death or permanent disablement occurs, then a journey claim is not to be disallowed even if the worker's injury is attributable to his serious and wilful misconduct, and that his substantial default or wilful act does not debar. The general provision in s. 7(2)(c) which applies to both journey and non-journey cases would seem absurd in its application to journey cases if there was entitlement in death and serious disablement cases despite serious and wilful misconduct, but the entitlement did not arise if there was substantial default or wilful act.

1. [1901] A.C. 79. 2. [1911] A.C. 35. 3. (1923) 16 B.W.C.C. 208. 4. [1955] A.C. 1. 5. (1960) 104 C.L.R. 328. 6. (1943) 44 S.R. (N.S.W.) 173.

The material facts and statutory provisions are set out in other judgments and I do not need to repeat them.

The relevant provisions of the Workers' Compensation Act 1912-1978 WA do not differ in any material respect from the corresponding provisions of the New South Wales Act, the Workers' Compensation Act 1926 NSW, as amended, in the form it was prior to the 1951 amendment.

The decision of this Court in Wilson v Wilson's Tile Works Pty Ltd [37] deals with provisions in the Workers' Compensation Act NSW which do not differ materially from the Workers' Compensation Act now in question. The majority of the Court decided that provisions in the Workers' Compensation Act NSW in a form not distinguishable from s. 7(1a) and s. 7(2)(c) of the Workers' Compensation Act WA produced the result that the words "unless the injury results in death or serious disablement" did not apply to the provisions in s. 7(1a) which deals with injuries suffered while travelling between a worker's place of abode and his place of employment.

If the present question were free from authority I would have been disposed to favour the conclusion expressed by Fullagar J. in his dissenting judgment in Wilson's Case, but it is not free from authority. That decision has stood for twenty years and it would not be right to differ from it simply because I regard the reasoning of the minority as preferable.

There is another and perhaps more cogent reason for not departing from that decision. The critical words at the end of par. (c) of s. 7(2) of the Workers' Compensation Act WA., i.e. "unless the injury results in death or serious and permanent disablement", were added to s. 7(2)(c) by amendment in 1970 - see the Workers' Compensation Act Amendment Act (No. 2) 1970 (No. 43 of 1970). We were informed by counsel that this was done as a consequence of the decision of the Supreme Court of Western Australia in Natkanski v Western Australian Government Railways Commission [38] , which dealt with the words "but without substantial default or wilful act" in s. 7(1a)(a). It may perhaps be more accurate to say the amendment was made after that decision. It was a case of a worker killed in a level crossing accident while on his way home, the relevant Tribunal having found his injuries were incurred "not without substantial or wilful default on his part". A more significant fact however is that the addition of the words "unless the injury results in death or serious or permanent disablement" to s. 7(2)(c) brought that provision into the same form (save for an irrelevant difference in the order of the words) as the provisions of s. 7(3)(b) of the Workers' Compensation Act NSW. That is to say that it brought the relevant provisions of the Workers' Compensation Act WA into the same form as the corresponding provisions of the Workers' Compensation Act NSW which were the subject of the decision in Wilson's Case. It is not to be supposed that those concerned with the administration of the Act and the draftsman of the amendment were unaware that the words of the amendment came from the Workers' Compensation Act NSW and that they had been considered by this Court in Wilson's Case in a context not distinguishable from s. 7(1a)(a) or (b) and s. 7(2)(c) of the Workers' Compensation Act WA. This is not a case of re-enactment of earlier State legislation which has already been construed in the courts of that State, or of enactment in a second State of legislation already construed by the courts of the State in which it was first enacted. It is the enactment in an identical context of words the meaning of which has already been decided by this Court, not merely by the courts where it was first enacted. It is therefore not a case of "comity" as that expression has sometimes been used in this context. Cf. Pearce on Statutory Interpretation in Australia, 2nd ed. (1981), pars 95-102.

Those circumstances provide a separate and substantial reason for applying the construction adopted by the Court in Wilson's Case [39] .

In relation to the other issues raised in this case I am in agreement with the reasons for judgment prepared by my brother Mason which I have had the advantage of reading.

I agree with the answers which he proposes for the questions in the case stated.

I agree with the reasons for judgment of Mason J. and accordingly I would answer the questions as follows: Question (a): Yes. Question (b): No.