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[1964] HCA 35
High Court of Australia
1964-07-01
Owen JJ, Pape JJ
Original judgment source is linked above.
The application of this principle was often difficult, especially when an injury was received during a lunch-hour break or other similar interval in the working day: see e.g. Whittingham v. Commissioner of Railways (W.A.) [1] ; Davidson v. Mould [2] ; The Commonwealth v. Oliver [3] . In the Act with which we are here concerned the legislature has met the difficulties by making considerations of time and place decisive, in most cases, for determining what occurrences are within the course of employment. Thus s. 8 (2) of the Act provides that an injury is deemed to arise out of or in the course of employment if the injury occurs while the worker is present at his place of employment on a working day or, "having been so present, is temporarily absent therefrom on that day during any ordinary recess and does not during any such absence subject himself to any abnormal risk of injury". And the " "place of employment" shall, where there is no fixed place of employment, be deemed to include a reference to the whole area, scope or ambit of the employment" (s. 8 (3)).
The critical question in this case is, therefore, whether the appellant was injured while he was temporarily absent from his place of employment during an ordinary recess. Shortly before he was hurt he had been delivering bread. While he was doing that it could be said that, there being no fixed place of employment, he was, like any other carter on his rounds, then at his "place of employment" as defined by the Act because within the scope or ambit of his employment. But he had finished his deliveries before the injury occurred and had gone swimming. Can it be said that he was doing so during an ordinary recess? That he was, in the well-worn phrase, "on a frolic of his own", is immaterial. The Act contemplates that a worker may leave his place of employment to frolic as he wishes during any ordinary recess, provided that in doing so he does not "voluntarily subject himself to any abnormal risk of injury"; and going swimming is not, of itself, taking an abnormal risk of injury: Taylor v. Stapley [1] . It is not necessary, in the view I take of this case, to decide whether on the facts it was open to the Board to decide that in diving into shallow water, as he did, the appellant was not taking an abnormal risk of injury.
By "an ordinary recess", I take it, is meant a break or interruption of limited duration in the continuity of a normal working day, regularly allowed for meals or rest. The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. Recesses, variously called lunch-hours, tea breaks, smokos, stand-downs etc., are normal features of employment in many industries. They are ordinary recesses. It seems to me a misuse of words to say that the appellant when he was swimming was temporarily absent from his place of employment during an ordinary recess.
An alternative proposition was that the injury to the appellant could be said to have occurred while he was travelling between his place of residence and place of employment. If that were so, then it would be deemed by the Act to have arisen out of and in the course of his employment. But that provision, which is directed to a state of facts altogether different from those of this case, assumes that the worker resides in one place and works in another and travels between them. Had the appellant been injured while returning to his employer's premises after having completed his deliveries, he would not have been travelling to his place of employment or from his place of employment so as to be deemed to be in the course of his employment: he would have been actually in the course of his employment. But not being required at the bakery until later in the afternoon he went swimming. When he was injured he could not in my opinion be said to be in the course of his employment in the ordinary sense of that expression nor within any of the extended and artificial senses given to it by the statute.
Landers
Dawson
High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Landers v Dawson [1964] HCA 35