Goward v Commonwealth

High Court of Australia|1957-07-01|Before: Kitto JJ, Mack J

The application for special leave to appeal is however based upon the ground that, even so, the accident arose out of the deceased's employment because of the position of the camp, the reliance for postal and other services on the station and station house and the dependence upon the crossover meant that the risk of injury by accident in connexion with the railway was made incidental to the employment or in other words that it was a risk to which the deceased was exposed in virtue of the employment. On this point the magistrate made a finding but one which did not go very far. It was that the location of the camp constituted a danger to a person travelling to and from the station house.

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, organised camping parties and paid a camping allowance. To live in the camp may therefore be regarded as an incident of the employment. But the difficulty is that the cause of the deceased's being on the railway line cannot be ascertained and therefore cannot be assigned to any closer or other association with the employment than can be found in the proximity to the railway line and the crossover and in the use made of the crossover to get to the station and station house.

The contention is based on the conception which the often repeated words of Lord Shaw in Thom v. Sinclair [1] describe - "The expression" (arising out of the employment) "in my opinion, applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute "arising out of the employment" apply" [2] .

(1917) A.C. 127. 2. (1917) A.C., at p. 142.

To this must be added the explanation given by Lord Haldane in Upton v. Great Central Railway Co. [3] to the effect that it will suffice if the accident arises out of circumstances the employee has had to encounter because it is within the scope of his employment to do so.

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. Anybody desirous of using the station or posting a letter must use the crossing unless he was on the south side of the line. It was a public crossing open for all to use. No duties of the deceased required that he should cross. It was entirely because it was the public means provided for getting to the station or station house from the north. If, being in a confused condition, he made a mistake at the crossing the risk of his doing so was not an incident attached to his employment. If on the other hand he was run down through the train moving or being in motion as he crossed, that does not seem to be a risk particularly associated with the fact that as an incident of the employment he lived in the camp. The sparse habitation of the place tends to make it less apparent that the risks of the crossing really belong to the order of ordinary public risks not specifically associated with the employment. If there were large numbers of persons using the crossing this would seem clear. But the fact that the camp brought men to a place which doubtless few used does not mean that an ordinary public risk attending all crossovers becomes a risk of the employment, the duties of the deceased not having led him to cross on the occasion of the accident. The hypothesis that he got through the fence is even less capable of supporting his case. For it was a thing that could not be ascribed to anything but his voluntarily going beyond anything incidental to his employment.

For these reasons we think that an appeal by the applicant must fail and that it would therefore be wrong to grant her application for special leave to appeal.

I agree. If this motion were allowed the ensuing appeal would turn on the question whether there is any evidence that the fatal accident arose out of the deceased's employment with the Commonwealth. In order that the applicant's claim should succeed, it is not necessary that there should also be evidence that it arose in the course of the employment, as the conditions of the right to compensation are, in the Act, disjunctive.

There is no evidence that any duty of the employment brought the deceased to the place where the train ran him down. If there were such evidence, it would be an inescapable conclusion that the occasion was within the protection of the Act. The absence of such evidence, however, does not necessarily preclude the applicant from claiming that the accident arose out of the employment. It is urged on her behalf that the evidence proves a causal relation between the employment and the accident sufficient to satisfy the criterion of "arising out" of the employment. The contention that such a causal relation existed is founded on the circumstances in which the deceased stayed at the camp. It is a permissible finding, on the evidence, that it was part of the deceased's employment to stay in the camp: see London and North Eastern Railway Co. v. Brentnall [1] . The applicant relies upon what the evidence proves was in fact necessarily involved in staying in the camp. It proves that by reason of the situation of the camp alongside the railway line nobody, who was in the camp, could leave or return without crossing the rails; and because the camp was not self-sufficient, there were frequent occasions when it was necessary to go to the other side of the line, for example, to the station house where letters were posted and obtained by the men living in the camp. That is a purpose of a kind connected with staying in the camp. The magistrate found that because of the location of the camp a person travelling between it and the station house would encounter danger resulting from the traffic on the lines which he would have to cross. In the circumstances it could be inferred that the deceased was exposed to that risk by his employment, as it involved staying in the camp. The applicant's case is that the deceased was on a journey between the camp and the station house when he was killed by a train, and that the purpose of the journey was related, as above-mentioned, to his living in the camp and thus with the employment. If there were evidence on which to find that the deceased was run down by a train when he was crossing the rails in the course of such a journey, I think that it could be powerfully argued that his employment materially contributed to the fatal accident by which he met his death. The magistrate stated, in his decision, that there is no evidence as to what the deceased was doing on the railway line or as to where he was going at the time of his death. This is correct. The absence of that evidence creates the real difficulty in upholding the applicant's claim for compensation. The lack of such evidence leaves in doubt whether there was truly a causal connexion between the employment and the accident. For this reason I think that no useful purpose would be served in granting this application for special leave to appeal and it ought to be refused.

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Kitto JJ. Goward v Commonwealth [1957] HCA 60

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