McCURRY v LAMB

Clarke JA I agree that the appeal should be dismissed generally for the reasonsgiven by Handley JA.

Handley JA This is an appeal by the employer from awards of weekly and lump sumcompensation made by Moroney CCJ in favour of the respondent worker. The appeal to this Court is a full appeal on fact as well as law.

On 7 November 1989 at about 11.30pm the worker, a shearer, was shot and badly injured while asleep in the jackeroo's cottage on Oolambuyan Station about seventy miles north of Deniliquin. He was employed by the appellant, a shearing contractor, as part of a team of eight shearers, a wool classer, a wool presser, a married cook and two female rouseabouts. The appellant had the shearing contract for the station and the team arrived there on Sunday 29 October. The appellant himself, the wool classer, and the two female rouseabouts were quartered in the jackeroo's cottage which was about 400 yards from the shearers' quarters. There were three bedrooms and a lounge room in the cottage. The men had separate bedrooms and the two girls shared the third bedroom which had two single beds.

The worker and the other male employees shared accommodation at the shearers' quarters where the dining room mess used by all the staff was located. Shortly after his arrival at the camp the worker formed a relationship with Karen Deakin, one of the female rouseabouts which quickly developed into a sexual relationship. On Wednesday evening November in the shearers' quarters Websdale, another shearer, then affected by drink picked up the worker's gun and at one stage pointed it at him. The worker succeeded in disarming Websdale who then began to cry. By this time the worker was aware that there was trouble

between Websdale and the girls. Websdale had had "a one-night stand" with Deborah Astell, the other rouseabout and had subsequently been rejected by her.

On Thursday 2 November after the evening meal the worker went to the jackeroo's cottage. He had a beer with the employer and the wool presser in the lounge room and at about 10.30 he said to the employer that he was going into the girls' room to see Karen. He entered the room and had sexual intercourse with Karen Deakin in her bed and slept with her that night. The next morning at about 6.30 or 6.45 the employer called out to the worker from outside the girls' room and asked him to get moving. The worker got up, got dressed and got into a vehicle with the employer and the wool presser and was driven down to the shearers' quarters for breakfast. At the end of the day's work the worker was driven to his home at Deniliquin where he spent the weekend. He returned on the Sunday night and slept in the shearers' quarters. On Monday night 6 November after the evening meal he accompanied Karen Deakin to the jackeroo's cottage, had sexual intercourse with her and slept with her that night. He returned to the shearers' quarters in the morning for a shower and breakfast. That day at about 1 pm the shearers decided that the sheep were too wet and shearing ceased. It was Melbourne Cup Day and a group from the team including the worker, the two girls and Websdale were driven to Carrathool where they went to the hotel, had some drinks and watched the Melbourne Cup. Later they went fishing on the banks of the Murrumbidgee and had some more drinks. The party returned to the hotel where Deborah Astell met one Ian Hutchins who she invited back to the jackeroo's cottage. The worker and Karen Deakin left the hotel about 7 or 7.30 and were driven back to the camp. On arrival they went to the girls' bedroom in the jackeroo's cottage and again had sexual intercourse. Later Deborah Astell and Jan Hutchins arrived. The worker was in Karen Deakin's bed. Some music was played and some alcohol was consumed but the worker was asleep.

About 11.30 pm Websdale kicked the door open. The worker and Karen Deakin were in one bed and Deborah Astell and Ian Hutchins were in or on the other. Websdale had the worker's gun. He shot and fatally wounded Karen Deakin and Ian Hutchins and shot and seriously injured the worker. As a result of the injuries he then received the worker is now a paraplegic and totally incapacitated.

The trial Judge found that the worker was permitted or authorised to reside in the camp and was encouraged to do so by the provision of free accommodation and meals. He was not confined to any particular place in the camp for sleeping purposes and in any event the employer knew that the worker slept in the jackeroo's cottage on the night of Thursday 2 November. He did not object and took no steps to prevent the worker sleeping there again. The Judge held that sleeping at the camp was incidental to the worker's employment and conducive to its further performance, and therefore he had been injured in the course of his employment.

Since the decision under appeal the High Court has given judgment in Hatzimanolis v ANI (1992) 173 CLR 473 where it redefined the principles which determine when an employer is liable to compensate a worker for injuries received during intervals between work.

It is clear from the evidence and the facts found by the trial Judge that this worker was injured during an interval between work while he was staying in a camp provided by the employer. At the time the worker was sleeping in Karen Deakin's bed but he was not "out of bounds". He was still within the camp area where other employees had their sleeping quarters. The employer knew that he

had slept there at least once before and had not raised any objection or taken any steps to prevent the worker sleeping there again.

This appeal and the appeal in Inverell Shire Council v Lewis were argued the same day before this Court. In my opinion, for the reasons given in Inverell Shire Council v Lewis (also delivered today), the worker sustained his injuries "at a particular place", namely the camp, where the employer had induced or encouraged him to stay, and while he was doing something that was reasonably incidental to his temporary residence there, namely sleeping. No question of gross misconduct arises and the fact that the worker's injuries were caused by the deliberate and criminal conduct of a fellow employee does not affect his right to compensation. Accordingly the worker received his injuries in the course of his employment.

This result may seem to some anomalous or even bizarre. The worker received his catastrophic injuries as the result of the actions of a deranged fellow shearer when and because he was in bed with a fellow employee in the rouseabouts' quarters. Another young man on or in the next bed, who was not an employee, was killed. Had that young man sustained similar injuries and lived he would only have been entitled to the invalid pension. The risk of injury that materialised to the worker occurred after working hours and because of what he and others did in their own time. The only involvement of the employer was that the female rouseabouts and Websdale were also employees, the employer knew of the worker's sexual relationship with one of the rouseabouts and the shooting occurred in the camp.

The employer, unlike the worker, did not know how distraught Websdale had become, following his rejection by the other rouseabout, and did not know that he had threatened to use the worker's own gun on the girl. The risks of injury from a deranged lover with access to a gun might be thought to be a community rather than an employment risk, even if fellow workers are involved.

This Court is nevertheless compelled to reach its result because of the interpretation that the High Court in Hatzimanolis v ANI and earlier cases has placed on the language of the Workers Compensation Act which entitle the worker to compensation for injuries arising "in the course of his employment". This interpretation has expanded the meaning of these simple words far beyond what might be thought to be their ordinary and natural meaning. However this Court is bound to apply the existing law and any change in that law is a matter for the Parliament.

The award was also challenged on the ground that the Judge had wrongly refused the employer an adjournment and in doing so had denied him natural justice.

The Judge had taken the worker's evidence at Albury on 24 October 1990 and the case had then been adjourned to Sydney for further hearing on 5 December. Following the first hearing the employer's legal representatives decided that it would be desirable to call Deborah Astell, Mr John Turner a fellow shearer, and Mr Thompson the wool classer to give evidence in Sydney at the adjourned hearing. When the case was called on none of these witnesses were available and the employer applied for an adjournment to secure their attendance. There was hearsay evidence before the Judge that Mr Turner had been served with a subpoena but had refused to attend. There was no evidence, even of a hearsay nature, that Deborah Astell or Mr Thompson had been served. The employer did

not have an affidavit of service of the subpoena on Mr Turner. The Judge said that the employer had had ample time to secure the attendance of the witnesses and refused an adjournment.

The evidence of the worker had not been challenged in cross examination except on matters of detail. The employer himself did not give evidence but wished to call, or perhaps to consider calling, one or more of these witnesses to contradict the evidence of the worker on these matters of detail. These details were of doubtful relevance even before the decision of the High Court in Hatzimanolis and are of no relevance since. I have not been persuaded that the Judge erred in the exercise of his discretion and I am quite satisfied that there has been no miscarriage of justice. In my opinion the appeal should be dismissed with costs.

Sheller JA I have had the benefit of reading the judgment of Handley JA. His Honour has set out the facts and accordingly I need not repeat them. I agree with his Honour that Moroney CCJ did not err in the exercise of his discretion in refusing the employer an adjournment.

To the extent that the findings of fact made by the trial judge were challenged on the appeal, they were, in my opinion, open on the evidence and should not be disturbed. The question was whether, on those findings, the worker's injury occurred during the course of employment. The worker was injured in sleeping accommodation at the worksite where he had been encouraged to stay. On the trial judge's findings of fact and for the reasons that I gave in Inverell Shire Council v Lewis, I am of opinion that the trial judge was entitled to conclude that the injury occurred during the course of the worker's employment. Accordingly, I agree that the appeal should be dismissed with costs.

Counsel for the Appellant: J POULOS QC/J LICHTENBERGER Instructed by: ABBOTT TOUT RUSSELL KENNEDY

Counsel for the Respondent: BJ GROSS QC/R HARRINGTON Instructed by: CARROLL and O'DEA