O'Loughlin v Linfox Australia Pty Ltd

Introduction 1 In 1894 Lord Herschell LC said: "Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other": Institute of Patent Agents v Lockwood [1894] AC 347 at 360. 2 This appeal raises such a conflict between certain provisions contained in Pts I and II of Div 1 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The relevant provisions govern the circumstances in which compensation may be payable to employees of the Commonwealth, or certain licensed corporations, in respect of injuries which are suffered by them arising out of, or in the course of, their employment and which result in death, incapacity for work or impairment. 3 The appeal is brought, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), from a decision of the Administrative Appeals Tribunal (the Tribunal) refusing Mr O'Loughlin's claim that he is entitled to the payment of workers' compensation benefits under the Act by his employer, the respondent, Linfox Australia Pty Ltd (Linfox), as a result of injuries he sustained in 2010 when he was employed by Linfox as a petrol tank driver. 4 Linfox also relies on a notice of contention, which gives rise to another issue of law, namely whether the Tribunal, even if it is found to have erred on the question of construction the subject of Mr O'Loughlin's appeal, was nevertheless bound, by reason of its findings of fact and the evidence before the Tribunal, to find that Mr O'Loughlin's injuries had not arisen out of, or in the course of, his employment and thus to dismiss his application. The notice of contention also alleges, relatedly, that the Tribunal failed to deal with Linfox's submissions made to the Tribunal in respect of a decision of the Court of Appeal of the Supreme Court of Victoria in Martin v Bailey (2009) 26 VR 270. 5 Before turning to the circumstances in which Mr O'Loughlin sustained his injuries, it is convenient to set out the relevant provisions of the Act which give rise to the issues on this appeal.

Safety, Rehabilitation and Compensation Act 1988 (Cth) 6 The Act is entitled "An Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers' compensation for those employees and certain other persons, and for related purposes". 7 The proceeding before the Tribunal, and this appeal, were conducted on the basis that the terms of the relevant parts of the Act that apply are not relevantly different to the terms of the Act in force when Mr O'Loughlin was injured and made his original and successful application for compensation. So much is apparent from the written and oral submissions made to the Tribunal and in this Court. The point matters, as we shall see, because there is a question as to whether terms of one relevant provision, namely s 6(1)(b), were different in 2010, when Mr O'Loughlin was injured, and in 2014, when Linfox determined to revoke the September 2010 determination accepting liability under s 14 of the Act (see [57]-[71] below): cf Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [4]. After the hearing of this appeal had finished, and I had conducted my own research into the relevant legislative history, I asked the parties to clarify which version of s 6(1)(b) they contend applies. Linfox, consistently with the way in which the matter was conducted before the Tribunal, submitted that the 2014 version of s 6(1)(b) applies. The applicant's counsel, although, like Linfox, contending that it makes no difference which version applies, submitted that the version of s 6(1)(b) in force at the date Mr O'Loughlin sustained his injuries (that is, in 2010), to which neither the Tribunal nor this Court had been taken, was to be applied. I will return to that issue later in these reasons. These reasons, however, proceed on the basis that the current version of the Act, including s 6(1)(b), relevantly applies. That is the version to which the Tribunal had regard: O'Loughlin and Linfox Australia Pty Ltd [2016] AATA 606 at [57]. 8 Linfox is a "licensed corporation" under Pt VIII of the Act. By virtue of s 4(10A) of the Act, a reference in the Act to Comcare is a reference to Linfox. 9 Section 14 of the Act is headed "Compensation for injuries". It provides: (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. (2) Compensation is not payable in respect of an injury that is intentionally self-inflicted. (3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. 10 "Injury" is relevantly defined in s 5A(l) to mean: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. 11 Section 6 of the Act is headed "injury arising out of or in the course of employment". It provided as follows: (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained: (a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or (b) while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or (c) while the employee was temporarily absent from the employee's place of work undertaking an activity: (i) associated with the employee's employment; or (ii) at the direction or request of the Commonwealth or a licensee; or (d) while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or (e) while the employee was at a place of education, except while on leave without pay, in accordance with: (i) a condition of the employee's employment by the Commonwealth or a licensee; or (ii) a request or direction of the Commonwealth or a licensee; or (iii) the approval of the Commonwealth or a licensee; or (ea) while the employee was travelling between the employee's place of work and a place of education for the purpose of attending that place in accordance with: (i) a condition of the employee's employment by the Commonwealth or a licensee; or (ii) a request or direction of the Commonwealth or a licensee; or (iii) the approval of the Commonwealth or a licensee; or (f) while the employee was at a place for the purpose of: (i) obtaining a medical certificate for the purposes of this Act; or (ii) receiving medical treatment for an injury; or (iii) undergoing a rehabilitation program provided under this Act; or (iv) receiving a payment of compensation under this Act; or (v) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or (vi) receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or (g) while the employee was travelling between the employee's place of work and another place for the purpose of: (i) obtaining a medical certificate for the purposes of this Act; or (ii) receiving medical treatment for an injury; or (iii) undergoing a rehabilitation program provided under this Act; or (iv) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or (h) while the employee was, at the direction or request of the Commonwealth or a licensee, at a place: (i) outside Australia and the external Territories; and (ii) declared by the Minister by legislative instrument to be a place to which this paragraph applies; or (i) while the employee was: (i) at the direction or request of the Commonwealth or a licensee, at a place outside Australia and the external Territories; and (ii) a member of a class of employees declared by the Minister by legislative instrument to be a class to which this paragraph applies. (1A) For the purposes of this section: (a) a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or (b) a journey to such a place of residence is taken to end at that boundary. (1B) If an employee owns or occupies a parcel of land contiguous with the land on which the employee's residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel. (1C) For the purposes of paragraph (1)(d), travel between the employee's residence and the employee's usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee. (2) In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f). (3) Subsection (1) does not apply where an employee sustains an injury: (a) while at a place referred to in that subsection; or (b) during an ordinary recess in his or her employment; if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury. (Emphasis added.) 12 Section 4 of the Act defines "injury" as having the meaning given by s 5A (see above). "Place of work" is defined, "in relation to an employee", to include "any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment". 13 Section 14 of the Act (read with s 5A(l)) thus creates an obligation to pay compensation in respect of "an injury … suffered by an employee, that is a physical … injury arising out of, or in the course of, the employee's employment" (s5A(l)) "if the injury results in … incapacity for work, or impairment" (s14(l)). The obligation to pay compensation, however, does not arise ("[c]ompensation is not payable") "in respect of an injury that is caused by serious and wilful misconduct of the employee", "unless the injury results in death, or serious and permanent impairment". It is the relationship between those provisions, and s 6(1)(b) and (3), that is central to the issues that arise on Mr O'Loughlin's appeal.

Circumstances in which Mr O'Loughlin sustained injuries 14 On 7 September 2010, Mr O'Loughlin delivered a tanker load of fuel to a Mobil service station in Pascoe Vale, a suburb of Melbourne. (It was common ground that the service station was a place of work in relation to Mr O'Loughlin within the meaning of the Act.) He arrived there at about 10:10 am. By 11 am he had finished discharging fuel into the storage tanks but the hoses were still draining. He was standing towards the rear of the tanker when he saw a car being driven by a female drive through the entrance to the service station. The driver was tooting the horn of her car and parked near an entrance to the service station about 30 metres from where Mr O'Loughlin was standing, next to the tanker. Mr O'Loughlin then saw a man, who was a mechanic employed at the workshop, run out of the workshop towards the car. The man was "yelling abuse" at the driver and threw objects at her car, one of which hit the windscreen. The man then continued to run towards the car, hit the windscreen with his fist, and punched the driver's window of the car, yelling abuse at the woman at the same time. Mr O'Loughlin then yelled out, "hey you, cut it out". The mechanic then started to walk back towards the workshop and said to Mr O'Loughlin, "shut the fuck up and mind your own business. I have the law on my side". Mr O'Loughlin replied to the mechanic something like, "but you can't do that mate, just settle down". 15 The mechanic then walked towards Mr O'Loughlin and said "just keep out of it, mind your own business". The mechanic stopped and then turned back to walk towards the workshop. Mr O'Loughlin then said to him, "don't speak to me like I'm a piece of shit". The mechanic then turned back to Mr O'Loughlin and said to him, "you are a piece of shit". The mechanic then turned away from Mr O'Loughlin and headed towards the workshop. Verbal abuse continued, and when the mechanic was about five metres away from Mr O'Loughlin, he turned around and came back towards him. At that point Mr O'Loughlin was pointing his finger at the mechanic, who then walked up to Mr O'Loughlin and threw a punch at him, which landed on Mr O'Loughlin's left cheek. Mr O'Loughlin then grabbed the mechanic in order to stop him hitting him. The mechanic then hit Mr O'Loughlin with two other punches, one to Mr O'Loughlin's right cheek and the other to the right side of his mouth. The mechanic then tried to throw another punch at Mr O'Loughlin, but he lost his balance and fell over backwards. 16 Mr O'Loughlin then stood over the mechanic and pretended to throw a punch by "shap[ing] up" over the top of him. The mechanic then lashed out at him with his feet and kicked at him two or three times. One of the kicks hit Mr O'Loughlin on the left knee, as a result of which his knee buckled backwards. Mr O'Loughlin then walked away from the mechanic towards his truck and the mechanic went back to the workshop. Mr O'Loughlin then went into the service station to tell the console operator to call the police, but that call had already been made. 17 Mr O'Loughlin went back to his truck to pack up the hoses and to fill out the necessary paperwork. He was standing near the tanker when the mechanic came back out with another individual who accused Mr O'Loughlin "of lunging at the mechanic and causing him to throw a punch". Mr O'Loughlin believed that the mechanic and his friend were "trying to get a story together to tell the police". Mr O'Loughlin told the mechanic's friend that he "didn't lunge at him and didn't even hit him". At that point the mechanic and his friend left.

Mr O'Loughlin's injuries 18 As a result of the kick to his knee, among other things, Mr O'Loughlin required two total left knee replacements. The second replacement was necessary after he experienced complications with the first. As a result of the injuries, and despite the surgeries, Mr O'Loughlin was unable again to drive a petrol tanker.

Mr O'Loughlin's claim for compensation and Linfox's initial acceptance of liability 19 Mr O'Loughlin made a claim on his employer, Linfox, seeking compensation pursuant to s 14 of the Act. Linfox accepted liability to pay Mr O'Loughlin compensation in respect of his injuries within about two weeks of the incident, in September 2010 (the September 2010 determination).

Linfox changes its mind 20 Linfox continued to make payments of compensation, in accordance with the September 2010 determination, until early 2014. Linfox changed its mind following the decision of the High Court in Comcare v PVYW (2013) 250 CLR 246 (PVYW). In that case, the majority of the High Court held that the employee governed by the Act was not entitled to compensation because her injury, having occurred during an "interval" in a period of work which was not connected to an inducement by, or encouragement of, her employer was not "in the course" of her employment. Linfox, relying on that reasoning in PVYW, formed the view that, due to the circumstances in which the altercation and resultant injury had occurred, Mr O'Loughlin's injury was sustained in "an interval" in the course of his employment. 21 On 7 January 2014, Linfox accordingly told Mr O'Loughlin that it had determined to revoke the September 2010 determination accepting liability under s 14 of the Act to pay him compensation, and instead to deny liability for "soft tissue injury to face and left knee injury". Linfox contends that the 7 January 2014 determination is the relevant reviewable decision and that the law in force on that date applies. The Act has not relevantly changed since that date.

Litigation history 22 Mr O'Loughlin sought review of Linfox's revocation at the Tribunal, which affirmed Linfox's decision. Mr O'Loughlin successfully appealed to this Court, as a result of which the matter was remitted to the Tribunal: see O'Loughlin v Linfox Australia Pty Ltd (2015) 235 FCR 164. 23 On remittal, "[t]he only issue … [was] whether Mr O'Loughlin's injuries arose out of or were sustained in the course of his employment. [That] involve[d] considering the secondary question of whether [the injuries] occurred during an interval in his employment": O'Loughlin and Linfox Australia Pty Ltd [2016] AATA 606 at [9]. 24 The Tribunal held that Mr O'Loughlin's injuries were sustained in the course of his employment and were not sustained during an interval in his employment, as Linfox had contended when it revoked the September 2010 determination. The Tribunal held, however, that Mr O'Loughlin, nonetheless, was not entitled to compensation because of the operation of s 6(3) of the Act, which, it will be recalled, says that s 6(1) "does not apply" if injuries were sustained because the employee "voluntarily and unreasonably submitted to an abnormal risk of injury". The Tribunal found that Mr O'Loughlin had so submitted himself to such a risk of injury and dismissed his application seeking review of Linfox's revocation of the September 2010 determination.

jurisdiction 25 Mr O'Loughlin's right to invoke the Court's jurisdiction to review the decision of the Tribunal under s 44 of the AAT Act is a right to appeal on a question of law. The existence of a question of law is "not merely a qualifying condition to ground the appeal, but it [is] also the subject matter of the appeal itself": TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 198; 82 ALR 175 at 178, quoted with approval by the Full Court in Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [13]. As the Full Court said in Comcare v Etheridge (2006) 149 FCR 522 at [14]: The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing ... The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act. (Citation omitted.) 26 The same principles apply when, as Linfox does here, a party seeks to rely on a notice of contention under r 36.24 of the Federal Court Rules 2011 (Cth) - that is, that party must, in such a notice, identify a question of law and the Court's capacity to review the decision is similarly limited. 27 Linfox did not dispute that the application and the accompanying notice of appeal filed on Mr O'Loughlin's behalf raised questions of law within the meaning of s 44 of the AAT Act. In relation to the notice of contention, Mr O'Loughlin submitted that the questions of law posed in the notice of contention, at least in part, sought impermissibly to take issue with findings of fact made by the Tribunal. But in my view, the grounds contained in the notice of contention (see infra at [81]-[101]) do raise questions of law.

Linfox's submissions about the proper construction of ss 5A, 6 and 14 of the Act 28 It is convenient to deal first with the submissions made on behalf of Linfox. It contends that although s 6 does not prescribe an exhaustive list of circumstances in which an injury may arise out of, or in the course of, employment, the purpose of the words with which s 6 commences - "[w]ithout limiting the circumstances in which an injury to an employee may be treated …" - "is not to allow s 6 to be disregarded if an injury can be treated as arising out of or in the course of employment independently of s 6(1) where the injury also falls into one of the paragraphs in that subsection". It also contends that the words "shall, for the purposes of this Act, be treated …" are mandatory and that if a particular circumstance falls within s 6(1), then s 6(1) must be applied according to its terms, without regard to what s 14 would otherwise dictate. 29 The next step in Linfox's submission is to go to s 6(1)(b). That paragraph provides: (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained: ... (b) while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment … 30 The parties agree that the words "while the employee was at the employee's place of work" describe the place at which the majority of physical workplace injuries occur and when read with the words of s 6(1) include the majority of the physical injuries that fall within the definition of injury in s 5A(1) of the Act. Linfox contends that, because that is so, s 6(1), and the "carve out" in s 6(3) (that s 6(1)(b) does not apply if an employee sustained the injury because they voluntarily and unreasonably submitted to an abnormal risk of injury), cannot be read as being limited to injuries that otherwise do not meet the definition of injury in s 5A. It contends that the result of the construction of the Act for which Mr O'Loughlin contends, namely that s 6(1)(b) has no work to do, would be "perverse", and that "it would [also] allow an employee to elect whether or not an exception to the liability to pay compensation applied, by electing whether to rely on s 6(1)", a result which it contends would also be perverse. 31 The substance of Linfox's submission, therefore, is that Mr O'Loughlin voluntarily and unreasonably submitted himself to an abnormal risk of injury at his employer's place of work (the service station) and that, as a consequence, s 6(l)(b), which provides that an injury "may be treated" as having arisen out of, or in the course of employment, if it was sustained "while the employee was at the employee's place of work" does not apply, by operation of s 6(3) of the Act. Accordingly, Linfox submits, Mr O'Loughlin is not entitled to compensation and the Tribunal was correct to dismiss his application for review.

Mr O'Loughlin's submissions about the proper construction of ss 5A, 6 and 14 of the Act 32 Mr O'Loughlin, on the other hand, says that there is no need for him to have resort to s 6, or to rely on it at all, because his injury was a physical injury, which resulted in an impairment, and it arose out of, or in the course of, his employment. By operation of s 14 of the Act, he submits that he is therefore entitled to compensation and that, in such circumstances, there is no cause to have resort to s 6, because the application of the plain meaning of the relevant words in s 14 admits of no doubt in the circumstances of his case. Accordingly, he contends, the question whether any of the circumstances described in paras (a)-(i) of s 6(1) could ever in such a case apply so as to "treat" an injury as having arisen out of, or in the course of, his employment never arises. It follows, so it is submitted, that s 6(3), which says that s 6(1) "does not apply" where an employee sustains an injury "while at a place" referred to in s 6(1) if the employee sustained the injury because he "voluntarily and unreasonably submits to an abnormal risk of injury", likewise never arises, because it never "applied" in the first place. 33 The effect of those submissions is that s 14 is the leading provision and s 6 is the subordinate: cf Institute of Patent Agents v Lockwood [1894] AC 347 at 360, quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [70]. The effect of Linfox's submission is the opposite.

Section 6 of the Act is a facultative provision 34 In Canute v Comcare (2006) 226 CLR 535 (Canute) at [8], the High Court observed that s 6 of the Act is a "facultative provision", which "indicate[s] (in a non-exhaustive fashion) when an injury may be treated as having arisen out of, or in the course of, employment for the purposes of the Act". The version of s 6 that applied in that case was for relevant purposes identical to the current version of the provision. 35 The observation by the High Court that s 6 is a facultative provision is obiter dicta, but I am bound to, and I do, regard it as having great weight. 36 The expression "facultative provision" is, of course, capable of meaning different things in different contexts. "Facultative" may describe the essential purpose of the provision. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, for example, Gleeson CJ and McHugh J (at [49]) described s 420 of the Migration Act 1958 (Cth), which provided that the Refugee Review Tribunal was "not bound by technicalities, legal forms or rules of evidence" and "must act according to substantial justice and the merits of the case", as a provision that is "intended to be facultative, not restrictive", its purpose being "to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law …": see also, in a similar context, Minister for Immigration and Citizenship v Li (2003) 249 CLR 332 at [15] per French CJ. 37 In another context, the word "facultative" may be used to describe a provision that does not impose a duty to act or is not mandatory. In Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51, Mason CJ recorded (at 63, referring to Ward v Williams (1955) 92 CLR 496 at 505) the Commissioner's contention that the presence of the word "may" (in a statute that provided that the Commissioner "may" refund overpaid stamp duty) "attracts a prima facie presumption that the word is to be understood in its natural and ordinary sense, that sense being permissive or facultative only". When used in that context, to describe a statutory provision (in that case s 111 of the Stamps Act 1958 (Vic)) as "facultative" is to characterise a provision by which the person or entity conferred with statutory power is not bound to exercise that power upon any particular occasion, or in any particular manner: cf Ward v Williams (1955) 92 CLR 496 at 505. 38 In another context, the word "facultative" may be used to identify a statutory provision that is not intended to exhaust or constrain the situations in which a person or entity is empowered to act. In Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 563, for example, Dixon J described s 501(1) of the Local Government Act 1928 (Vic), which provided that "[t]he council of every municipality may in the name and on behalf of the municipality enter into contracts for the purposes of this Act and every such contract may be made … as follows …", as "facultative or permissive in form and contains no expressions suggesting an intention to exclude the common law in so far as it enabled a corporation to contract". 39 In Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203, the Court of Appeal of the Supreme Court of New South Wales had to decide whether a provision in s 553(2) of the Companies (New South Wales) Code, which said that a company was "deemed to be unable to pay its debts if, and only if, execution or other process issued on a judgment, decree or order of any court in favour of a creditor … is returned unsatisfied …" was the exclusive provision by which it could be shown that a company was "unable to pay its debts" within the meaning of the operative provision (s 553(i)(f)), such that ss 554 to 557 applied to the company. The majority (Gleeson CJ, Cripps JA agreeing) held that it was. Kirby P (dissenting) held that it was not. 40 The majority held that s 553(2) was not facultative, and did not leave open the possibility of proving the same fact (that the company was unable to pay its debts) by other means: see Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 209B per Gleeson CJ, Cripps JA agreeing. 41 Kirby P, on the other hand, regarded "the word 'deemed', in its context in s 553(2) of the Code, to be used in a non-exclusive sense" and that "[i]t is simply a faculty to put at rest the disputes which may otherwise arise concerning the facts as to whether a company … is unable to pay its debts": Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 227A. 42 The reasons for the different views taken by the majority and Kirby P in that case are of no particular moment for present purposes. 43 When the High Court in Canute described s 6 of the Act as a "facultative provision" which "indicate[s] (in a non-exhaustive fashion) when an injury may be treated as having arisen out of, or in the course of, employment for the purposes of the Act", it is, in my respectful view, to be understood as having described s 6 as a "faculty" designed to "put at rest the disputes which may otherwise arise" about whether an injury to an employee in a given case does, or does not, arise out of, or in the course of, the employee's employment within the meaning of s 14 of the Act: cf Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 227A per Kirby P. That follows because the non-exhaustive indication of the circumstances when an injury may be treated as having arisen out of, or in the course of, employment set out in s 6 self-evidently describes cases which, but for s 6, would or may, depending on the circumstances of the case, give rise to a dispute. 44 By way of example only, if an employee governed by the Act is injured while the employee was: (1) temporarily absent from the employee's place of work undertaking an activity (s 6(1)(c)); (2) at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment (s 6(1)(d)); (3) at a place of education, except while on leave without pay (s 6(1)(e)); (4) travelling between the employee's place of work and a place of education (s 6(1)(ea)); or (5) at a place for the purpose of obtaining a medical certificate for the purposes of the Act, receiving medical treatment for an injury, undergoing a rehabilitation program, receiving a payment of compensation under this Act, undergoing a medical examination or rehabilitation assessment (s 6(1)(f)(i)-(v)), an issue may, or would, arise but for those provisions whether such an injury, sustained in those circumstances or in that place was, or was not, an injury suffered by an employee arising out of, or in the course of, their employment. Section 6, however, quells or puts at rest such disputes. 45 Because s 6 is a facultative provision, it must be afforded, as the Act as a whole must be afforded, a beneficial, and not a narrow, construction. The Act "is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such". It follows that "where two constructions are possible, that which is favourable to the worker should be preferred": Thiele v Commonwealth (1990) 22 FCR 342 at 346, citing Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J. Similarly "where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust": Comcare v Tiscay (1992) 38 FCR 181 at 188, citing Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350; see too Whittaker v Comcare (1998) 86 FCR 532 at 544F-545B.

Linfox's construction is inconsistent with the socially remedial purpose of the Act and would produce an irrational and unjust consequence 46 In this case, it may be accepted that both the competing constructions relied upon by the parties are possible, or open. In my view, however, the construction contended for by Mr O'Loughlin is to be preferred not only because where two constructions are possible or open, that which favours a worker should prevail, but because the construction contended for by Linfox would produce an irrational and unjust consequence. 47 That consequence would arise for this reason. By the terms of s 14(3), an employee who suffers a serious and permanent impairment arising out of, or in the course of, his employment is compensated for an injury caused by his own serious and wilful misconduct. That subsection provides, it will be recalled, as follows: Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. (Emphasis added.) 48 It follows that, under s 14(3), the employer would be liable to pay compensation in accordance with s 14 of the Act if the employee sustained a serious and permanent impairment even if the relevant injury was caused by the employee's own serious and wilful misconduct. (I interpolate that senior counsel for Mr O'Loughlin submitted in oral argument, and senior counsel for Linfox did not demur, that the injury sustained by Mr O'Loughlin to his left knee could properly be described as a serious and permanent impairment.) 49 If s 6 is to be construed as the primary provision by which liability to pay compensation arises under the Act, and the submissions of Linfox are accepted, that same employee would not be compensated by operation of s 6(3) for that injury, if he sustained it because he "voluntarily and unreasonably submitted to an abnormal risk of injury". 50 That, in my view, would be an absurd result because, despite Linfox's contention to the contrary, in the hierarchy of wrongdoing, as a matter of ordinary English, serious and wilful misconduct is undoubtedly more deserving of opprobrium than voluntarily and unreasonably submitting oneself to an abnormal risk of injury. Yet on Linfox's case, relying as it does on the primacy of s 6, in the posited case the employee would be compensated for an injury brought about by his own serious and wilful misconduct, but would not be compensated if it was brought about by having voluntarily and unreasonably submitted himself to an abnormal risk of injury. 51 In my view, that result would be manifestly irrational and unjust.

What doubt or controversy is s 6(1)(b) intended to address? 52 It is necessary now to return to the question of the proper construction of s 6(1)(b) in the context of ss 5A and 14 of the Act. (Again, I will put to one side for this purpose Mr O'Loughlin's recent submission that the version of s 6(1)(b) in force in September 2010 applies to his proceeding seeking review of Linfox's 2014 revocation.) The relevant words of the provision in force in 2014, and now, are: "while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment". 53 The provision is problematic because it may be suggested (and it was contended by Linfox) that the consequence of the construction of the relevant provisions for which Mr O'Loughlin contends is that s 6(1)(b) has no work to do, because by "treating" injuries sustained at "the place of work" as having arisen out of, or in the course of, the employee's employment, it does not describe a case arising under s 14 that would admit of any doubt, or controversy, calling for quelling. It is, on the face of it, difficult to conceive of an injury sustained at the employee's place of work that would not fall within the terms of s 14, on Linfox's construction of s 6(1)(b). The other paragraphs in s 6(1), on the other hand, as I have said, contain sufficiently clear facultative provisions which identify circumstances, by reference to defined places, or by reference to travel between one place and another, which treat an injury as having occurred in the course of employment, by creating a statutory "factual connection or association between the circumstance of the injury and the employment": Comcare v PVYW (2013) 250 CLR 246 at [51], citing s 6(1)(c) as an example. 54 Courts should, of course, be reluctant to conclude, that, on the proper construction of a statute, Parliament intended nothing by some particular words. Courts should presume that "words are not used in a statute without a meaning and are not superfluous … if possible, some meaning and effect should be given to all the words used": Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Chu Kheng Lim) at 12 per Mason CJ. But as his Honour went on to say: … this presumption or rule of construction is of limited application. In Hill v. William Hill (Park Lane) Ltd [1949] AC 530, at pp 546-547 Viscount Simon explained it in these terms: When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out. (Emphasis in the original.) 55 Spigelman CJ (with whom Mason P and Handley JA agreed) said the same thing in Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 at [74]-[75]: The principal theme in the line of authority to which I have referred above is the application of the presumption against surplusage. As the joint judgment put it in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 382: "a court construing a statutory provision must strive to give meaning to every word of the provision". There are, however, many occasions on which that cannot be done. (See, e.g. Brisbane City Council v Attorney General (Qld) (1908) 5 CLR 695 at 720; Hill v William Hill (Park Lane) Ltd [1949] AC 530 at 546-547.) Often "this presumption or rule of construction is of limited application" (citing Chu Kheng Lim (1992) 172 CLR 1 at 13). 56 Before turning to consider how those principles apply here, and to deal with the question which of the provisions are leading or subordinate, I turn to the legislative history of the s 6 of the Act.

The legislative history of s 6 of the Act 57 The legislative history of s 6 suggests that s 6(1)(b) was intended to have a limited operation in respect of injuries sustained at an employee's place of employment and that it is to be read relevantly as applying only to injuries sustained while the employee was at the employee's place of work during an ordinary recess in that employment. 58 As enacted in the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), the provision relevantly stated: 6. (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained: … (b) while the employee: (i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; … … (3) Subsection (1) does not apply where an employee sustains an injury while at a place referred to in that subsection if the employee sustained that injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury. 59 The definition of "injury" in s 4(1) at that time relevantly included "an injury (other than a disease) suffered by an employee, being a physical or mental injury (or the aggravation of such an injury) arising out of, or in the course of, the employee's employment": s 4(1)(b) (para (a) covering disease). 60 The Explanatory Memorandum to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (Cth) relevantly explained s 6(1)(b) in the following terms: Clause 6: Injury arising out of or in the course of employment The clause will deem an injury suffered by an employee to have arisen out of or in the course of employment if it occurred: … • while he or she was at his or her place of work or was temporarily absent during an ordinary recess in employment; … 61 The "carve out" in s 6(3) was described as follows: Subclauses 6(2) and (3) provide that an injury sustained by an employee on a journey referred to above will not be deemed to have arisen out of or in the course of employment if the journey was made by a route that involved a substantial adverse change in the nature or extent of sustaining an injury when compared to a more direct route or if the journey was interrupted in a way that caused a substantial adverse change in the nature or extent of that risk or if the employee sustained the injury because he or she voluntarily and unreasonably submitted himself or herself to an abnormal risk of injury. 62 The second reading speech to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (Cth) relevantly said: The Bill will extend coverage to employees injured in ordinary recesses, such as lunch breaks, and by acts of violence arising as a result of their employment by the Commonwealth, for example, staff working overseas injured by warfare, terrorism, et cetera. The journey provisions in the existing Act have been modified to require that journeys to or from the place of employment must commence or terminate at the employee's place of residence. (Commonwealth, Parliamentary Debates, Senate, 24 May 1988, 2769 (Michael Tate).) 63 Section 34 of the Social Security and Veterans' Affairs Legislation Amendment Act 1988 (Cth) (which commenced on 1 December 1988) substituted for sub-s (3) of s 6 the following: (3) Subsection (1) does not apply where an employee sustains an injury: (a) while at a place referred to in that subsection; or (b) during an ordinary recess in his or her employment; if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury. 64 The Explanatory Memorandum to the Social Security and Veterans' Affairs Legislation Amendment Bill stated: Clause 34: Injury arising out of or in the course of employment This clause would amend section 6 of the Principal Act to ensure that an employee who voluntarily and unreasonably submits himself or herself to an abnormal risk of injury during an ordinary recess in his or her employment would not be entitled to compensation. This clause would come into effect on 1 December 1988. 65 The second reading speech to the Social Security and Veterans' Affairs Legislation Amendment Bill 1988 (Cth) stated: The Bill will make some amendments to the Commonwealth Employees' Rehabilitation and Compensation Act 1988. These amendments are necessary to correct minor errors which occurred in the drafting of the Act earlier this year and to ensure that the Act, when it comes fully into operation on 1 December, correctly reflects the intentions of Parliament. (Commonwealth, Parliamentary Debates, Senate, 25 November 1988, 2934 (Graham Richardson).) 66 In 2007, the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) relevantly repealed the definition of injury in s 4(1), and replaced it with the existing s 5(1A) definition, and repealed s 6(1)(b) and replaced it with new s 6(1)(b)-(g). The new s 6(1)(b) relevantly removed coverage for injuries sustained while an employee was temporarily absent from his or her workplace during an ordinary recess. It provided: "Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained … (b) while the employee was at the employee's place of work, including during an ordinary recess, for the purposes of that employment". (Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), Sch 1, cl 12.) (Emphasis added.) (This is the version of s 6(1)(b) that Mr O'Loughlin's counsel now say applies in this case). 67 It is important to have regard to what was said about that provision in the relevant second reading speech and explanatory memorandum. 68 The second reading speech to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) explained the amendments as follows: … The principal amendments contained in this bill are intended to maintain the financial viability of the scheme. The amendments will also improve the administration and provision of benefits under the scheme. … The bill … amends the provisions that set out the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment. In its March 2004 report on National Workers Compensation and Occupational Health and Safety Frameworks, the Productivity Commission recommended that coverage for journeys to and from work not be provided, and for recess breaks and work related events should be restricted to those at workplaces and at employer sanctioned events. The fundamental common-sense principle underlying the Productivity Commission's recommendations was, of course, that employers should only be held liable for conduct which they are in a position to control. Consistent with the Productivity Commission's approach, the SRC Act will be amended to remove coverage for injuries sustained by employees during recess breaks undertaken away from the employer's premises - for example, lunch breaks during which an employee leaves the employer's premises to go shopping. Employers cannot control circumstances associated with journeys to and from work or recess breaks away from employer premises and it is not appropriate for injuries sustained at these times to be covered by workers compensation. (Emphasis added.) (Commonwealth, Parliamentary Debates, House of Representatives, 30 November 2006, 4-5 (Kevin Andrews).) 69 The explanatory memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) further stated: The amendments will provide that injuries incurred while an employee was temporarily absent from the workplace during an ordinary recess in employment will generally not be injuries arising out of, or in the course of, employment. For example, an employee who leaves his or her workplace at lunch time to buy a sandwich will not be covered by the SRC Act while he or she is absent from the workplace. However, the amendments do not affect: • injuries incurred by an employee during an ordinary recess at the workplace - new paragraph 6(1)(b); and • injuries incurred by an employee while the employee is temporarily absent from his or her workplace undertaking an activity associated with the employment or at the direction or request of the employer - new paragraph 6(1)(c). In contrast to the example above, an employee who remains at the workplace at lunch time and eats their sandwich in the amenities room or purchases it in the staff canteen will be covered by the SRC Act during that break. (Emphasis added.) 70 In 2011, s 6(1)(b) was repealed and replaced, by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011 (Cth), to restore coverage for injuries sustained by an employee while temporarily absent from his or her workplace during an ordinary recess: Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011 (Cth), Sch 2, cl 1. Clause 2 in Sch 2 to that Act also inserted new paras (h) and (i). 71 As senior counsel for Mr O'Loughlin submitted, it is apparent that "[n]one of the above amendments relevantly altered the interrelationship between either the definition of injury in s 4(1) and the provisions of s 6, or the interrelationship between s 5A and s 6".

Conclusions to be drawn from the legislative history 72 The legislative history of s 6(1)(b), in my view, supports a construction of para (b) (in both the 2010 version and the version in force in 2014 and now), in which the subject of the paragraph is the concept of an "ordinary recess". The words common to both versions "while the employee was at the employee's place of work" should, in my view, be read, because they were intended to be read, as being directed only to injuries sustained by an employer during such a recess. That is the extent to which either version of s 6(1)(b) has any work to do in respect of injuries sustained at an employee's place of employment. For the purposes of the definition of injury in s 5A(1)(b), the doubt, which both versions of s 6(1)(b) seek to address, arises from the fact of an injury having been sustain during an ordinary recess. As the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) makes plain (see [69] above), the words "while the employee was at the employee's place of work" were intended to attach to the words "ordinary recess", notwithstanding the interposition of the words "… or was temporarily absent from that place". 73 The 2010 version of the paragraph would, on the view I prefer, need to be read as if ", including" were struck out, so that it would be read as if it provided "while the employee was at the employee's place of work , including during an ordinary recess, for the purposes of that employment". 74 The construction of the current version of s 6(1)(b), consistent with the legislative history which I described, would be inescapable were the words "temporarily absent from that place" to be followed by a comma, such that the section provided that an "injury shall … be treated as having so arisen if it was sustained … while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place, during an ordinary recess in that employment". 75 In any event, in my view, those constructions of s 6(1)(b) are to be preferred to the literal construction of the words of either provision, because, for the reasons that I have endeavoured to explain above, that construction would be inconsistent with the facultative purpose of the section, and the socially remedial purpose of the Act, and would produce an irrational and unjust result. 76 In those circumstances, it is unnecessary to burden these reasons with a detailed analysis of which version of s 6(1)(b) in fact applies in the particular circumstances of this case. Both parties contended, in their additional written submissions in response to my query about the matter, that the outcome is the same whichever version applies. In my view, that contention is correct, for the reasons set out above.

Conclusion about the proper construction of ss 5A, 6 and 14 of the Act 77 For all those reasons, in a given case under s 14 of the Act, when s 14 applies according to its terms, and there is therefore no dispute to put at rest, or to quell, about whether an injury arose out of, or in the course of, the employee's employment, no occasion arises to have regard to s 6. Were it otherwise, as Linfox contends, it would be impossible to describe s 6 as "facultative". It would, on the contrary, be "restrictive". And it would not, applying the description of s 6 by the High Court in Canute, "indicate" anything - it would dictate; it would not be "non-exhaustive" - it would be exhaustive, at least whenever s 6(1)(b) applied; and it would read the word "may" ("an injury may be treated") as if it said "must". 78 Because it is not contended that Mr O'Loughlin's injuries were sustained during an ordinary recess, it follows that the "carve out" contained in s 6(3), upon which the Tribunal relied as the sole ground for dismissing Mr O'Loughlin's application, has no role to play, and the Tribunal erred in law in finding to the contrary. 79 Linfox's other argument, namely that Mr O'Loughlin's construction would allow an employee to elect whether or not an exception to the liability to pay compensation applied, by choosing whether to rely on s 6(1), must also be rejected. No issue arises about election. The starting point for any relevant inquiry in a case of this type is s 14 of the Act. If Linfox is liable to pay compensation under s 14(1), and that liability is not affected by the exclusions contained in s 14(2) or (3), then, subject to any other exclusions that may arise (s 17(2), for example, provides that if the employee dies without leaving dependants, compensation is not payable in respect of the injury), then liability to pay compensation in respect of the relevant injury remains. That is, no occasion arises to have regard to s 6. In my view, therefore, it is incorrect to assert that such an approach to the construction of s 14 permits an employee to "elect" to do anything. 80 For those reasons, the Tribunal erred in holding that s 6(3) of the Act applied to the circumstances of this case. It ought to have found that Linfox was liable to pay Mr O'Loughlin compensation in accordance with the Act pursuant to s 14 of the Act.

The notice of contention 81 Linfox says that the decision of the Tribunal should be affirmed, even if Mr O'Loughlin succeeds on the s 6(3) question (as he has), on these grounds: 1. If, as contended in the Notice of Appeal, the Tribunal erred in its construction and application of s5A(1)(b), s 6(1) and s 6(3) of [the Act], the Tribunal was nevertheless bound, by reason of: (a) the Tribunal's finding of fact; and (b) the uncontradicted evidence before the Tribunal; to find that the applicant's injury had not arisen out of or in the course of his employment within s 5A(1)(b) of [the Act]. 2. The Tribunal failed to deal with the Respondent's submissions, seriously advanced and worthy of consideration, which pointed to the finding identified in ground 1, citing the judgment of the Court of Appeal in Martin v Bailey [2009] VSCA 263. 82 The Tribunal dealt with the question of whether Mr O'Loughlin's injuries arose out of or in the course of his employment in detailed and careful reasons: O'Loughlin and Linfox Australia Pty Ltd [2016] AATA 606 at [15]-[56]. 83 After correctly noting (at [16]) that an injury arising out of an employee's employment may be different to an injury arising in the course of that employment, that the statutory expression is disjunctive (citing Dixon J in Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22) and that the expression "in the course of employment" does not require a causal relation with the employment and its incidents (citing and quoting from Dixon CJ in Kavanagh v Commonwealth (1960) 103 CLR 547 at 556 and Fullagar J at 558-559), the Tribunal turned to the question, raised by Linfox, whether Mr O'Loughlin was not injured in the course of his employment because the injury occurred during an "interval" within his overall period of work. That, it will be recalled, was the basis upon which Linfox had purported to deny liability to pay compensation to Mr O'Loughlin following the decision of the High Court in PVYW. The Tribunal held that he was not injured in the course of an interval within his overall period of work. Linfox now does not challenge that finding. The Tribunal reasoned as follows (at [26]-[31]): The High Court (Mason CJ, Deane, Dawson, and McHugh JJ) in Hatzimanolis [v ANI Corporation Ltd (1992) 173 CLR 473] said this about an interval or interlude in the course of employment, at 484: Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encourage the employee to spend that interval or interlude at a particular place or in a particular way. In his statement of evidence, Mr O'Loughlin said that on the day in question he commenced work at 4 a.m. and had already performed one delivery of fuel to a service station in Mt Evelyn. After reloading, Mr O'Loughlin proceeded to the Mobil service station at Pascoe Vale. By about 11 a.m. he had finished discharging fuel although the hose was draining into the storage tank opening. Allowing the hose to drain before securing it to the truck and closing the storage tanks was clearly part of his duties as tanker driver. Although not stated, it is undisputed that Mr O'Loughlin was required, after discharging fuel into the storage tanks, to ensure that the truck's systems were properly and safely secured and the safety cones which were placed around the tanker stored. It is likely, although not stated, that upon completion of that delivery Mr O'Loughlin was required to return to the Yarraville terminal to reload and make a further delivery. All of these duties form part and parcel of his ordinary employment activities for that day. It was while Mr O'Loughlin was in the process of conducting his employment duties that the altercation with [the mechanic] arose. Mr O'Loughlin had not even completed all of his duties required for the safe delivery of fuel to the Mobil service station. The altercation cannot properly be said to have occurred in an interval or interlude in the Hatzimanolis sense. While it was submitted that the altercation arose after Mr O'Loughlin had finished discharging fuel from the tanker, that is incorrect. The fuel hose remained connected to the storage tanks and fuel was draining from the tanker hose into those tanks. In my respectful opinion, it is incorrect to subdivide Mr O'Loughlin's employment duty into discrete tasks and anything in between as an interval rather than consider those tasks simply as a part of his overall employment duty as a tanker driver. Nevertheless, as Linfox submitted, Mr O'Loughlin's employment duties did not include engaging in fight with a member of the public. However, in my opinion, it cannot be said that the fight with [the mechanic] did not occur while Mr O'Loughlin was engaged in his tanker driver duties. It occurred within a period or episode of work. Accordingly, cases dealing with an interval or interlude in the course of an employee's ordinary employment, such as Hatzimanolis and PVYW, have no bearing on this matter. 84 The Tribunal next dealt with the question whether the injury suffered by Mr O'Loughlin arose out of his employment. It held that the evidence did not disclose a causal connection between his injury and his employment. It followed that the injury did not "arise out of" his employment within the meaning of s 14 of the Act: O'Loughlin and Linfox Australia Pty Ltd [2016] AATA 606 at [32]. Mr O'Loughlin takes no issue with that finding. 85 The Tribunal then turned to Linfox's final contention, namely that Mr O'Loughlin's injury, although not sustained during an interval in his period of actual work, nonetheless was not sustained "in the course of" his employment within the meaning of s 14. Because Linfox contends that the Tribunal was bound to conclude that the injury was not sustained in the course of his employment, and that the Tribunal failed to have regard to what it contends was an important submission concerning the decision of the Victorian Court of Appeal in Martin v Bailey (2009) 26 VR 270 (Martin v Bailey) about a provision of the Accident Compensation Act 1985 (Vic), it is necessary to set out the path of the Tribunal's reasons on the point, which was as follows (at [39]-[56]): For an injury to have arisen in the course of employment, that injury need not have a causal relationship with the employment task or tasks and its or their incidents. Dixon CJ made that abundantly clear in Kavanagh. Furthermore, Fullagar J in that case said, at 559: Whether the injury is sustained at the place of employment or elsewhere, it is not sustained "in the course of employment" unless it is sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work. It is, in my opinion, not possible to conclude otherwise than Mr O'Loughlin's injury was sustained while he was engaged in the work he was employed to do. In doing that work, particularly delivering bulk fuel to service stations, it is foreseeable he would come into contact with members of the public. Most would be polite and if asked to be cautious about approaching where the tanker was discharging fuel into storage tanks would be compliant but, inevitably, there will be others who may be confrontational. Contact with members of the public while performing these tasks is, in my opinion, an incident of that employment. The problem, if there is one, is that it was submitted on Mr O'Loughlin's part that his injury was sustained in the course of him conducting his duties and the assault was not provoked by him. With respect, the evidence points to the fact that had Mr O'Loughlin ceased his intervention when [the mechanic] walked back towards the workshop after being told to cut it out by Mr O'Loughlin, the matter would have ended there. However, when told to mind his own business by [the mechanic], Mr O'Loughlin responded to that comment. It was Mr O'Loughlin's response which resulted in [the mechanic] turning around and walking towards him. After again telling Mr O'Loughlin to keep out of it and mind his own business, [the mechanic] turned and walked back towards the workshop. By that time, the woman in the car had left the service station. Again, if Mr O'Loughlin had simply left it at that, nothing further would have transpired. However, Mr O'Loughlin reacted and told [the mechanic] not to speak to him in that way. It was that final comment which caused [the mechanic] to lose it and assault Mr O'Loughlin … [I]n cross-examination Mr O'Loughlin agreed that he was in no physical danger after [the mechanic] had walked away. Mr P Hanks QC, who appeared on behalf of Linfox, referred to the High Court decision in Deatons Pty Ltd v Flew (1949) 79 CLR 370. In that case, Mr Flew was injured when a barmaid employed by Deatons threw a glass of beer in his face following an abusive and insulting observation of her. As a result, Mr Flew lost the sight of one eye. He sought damages for assault. Latham CJ said it was clear that the barmaid had committed an assault and was liable. However the liability of her employer depended upon the scope of employment and the authority which her employment conferred upon her. His Honour went on to say, at 378: An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant's authority either as being an act which he was employed actually to perform or being an act which was incidental to his employment. The problem with reliance upon this statement should be immediately apparent. It arose in the context of the liability of an employer for the act of a servant. Dixon CJ in Kavanagh referred to early decisions of the English Courts dealing with the expression in the course of where it was said: A master is responsible for all acts done by his servant in the course of his employment, though without particular directions [emphasis in original]. His Honour then said, at 556 - 557: Familiar as they became in describing the limitation upon the wrongful acts of the servant for which the master is liable to others, they necessarily received a new and enlarged application when used to describe a limitation upon the injuries sustained by the servant for which the liability to the servant was imposed by statute upon the master. For it is one thing to use words of the description of the occasion when acts or omissions of the servants should render the master liable to strangers, and it is quite another thing to apply them to limit the occasion when the injury suffered by an employee should be compensated by the employer. Almost inevitably the latter use invites an enlargement of the notion of employment to include the incidence of the employment and the question whether an injury is suffered in the course of the employment can hardly be governed by the same considerations as the question whether one has been inflicted in the course of employment. The decision of the High Court in Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 is closer to the point in this case. Mr Weston was employed as a locomotive driver in a mine. While performing his duties in the mine he was assaulted and seriously injured by another of the employer's employees who was not on duty at the time and who should not have been in the mine. The reasons for the assault need to be stated because, similar to Mr O'Loughlin's case, there was a significant element of provocation and retribution involved. Mr Weston and a male friend were concerned that the male friend's wife was living with another man known as Mr X. Some weeks prior to the assault, Mr Weston, in the company of his brother and the male friend, visited the house where it was thought that the friend's wife was living with Mr X. The purpose of the visit was to gain evidence upon which to base divorce proceedings against the friend's wife. ... Mr X and the friend's wife were found in bed together and a flashlight photograph of them was taken from a window. Mr X became enraged, jumped out of bed, and made threatening remarks including references to "Australian bastards", an axe and that he would "get the 3 of us". Some three weeks after the event described above, when Mr Weston was working in the mine in the afternoon shift, he was set upon by Mr X. The attack caused him serious injuries including fractures of the right forearm and skull and serious concussion. The Full Court of the Supreme Court of Western Australia overturned the primary decision which found that Mr Weston's injuries arose in the course of his employment. The High Court unanimously allowed the appeal against that decision. The High Court placed significant reliance on Kavanagh's case. The first point dealt with by the Court (Menzies J) was whether the injury occurred by accident. It was argued that it was not an accidental injury because it was designed by someone, in this case the attacker, and the nature of the employment was not such as to expose the worker to risk of deliberate assault. It was also argued that the worker actually expected the attack that was in fact made upon him. Menzies J rejected both of these submissions. Relying essentially on earlier English cases and in particular Trim Joint District School Board of Management v Kelly [1914] AC 667, Menzies J agreed with Lord Reading who said, at 720: Construing the words in their ordinary and popular sense, I think they mean an injury caused to a workman by some sudden and unexpected occurrence, whether the injury was inflicted by design or otherwise, as distinguished from an injury caused to him by some gradual process. Windeyer J explained that the change in the legislation, particularly the change from arising out of and in the course of employment to arising out of or in the course of employment, has resulted in a significant departure from earlier principles and that earlier doctrine must be discarded. His Honour went on to say, at 39: Admittedly the event was not of a kind that one would ordinarily expect might occur in the employment in which the appellant was engaged. Such a happening was not one of the ordinary hazards of that employment. Therefore, if the Western Australian Act still spoke of an accident arising out of and in the course of employment, it may well be that the employer would not be liable for the consequences of the accident in this case. But as the law now stands he is liable if the accident arose in the course of the employment. And that requirement, separately regarded, was I think satisfied here. Windeyer J also referred to his decision in Kavanagh where he was of the opinion that the expression in the course of employment did not simply mean while at work. While he indicated he found it difficult to rid himself of that opinion, the majority of that Court was against him. His Honour then said, at 40: As I understand their judgements, anything at all that happens to a man while he is at work happens in the course of his employment; and if it happens unexpectedly it is an accident in the course of the employment. That is enough to dispose of this case.… The assault as actually made upon him, the accident that in fact caused the injury, was made possible because his employment had taken him into the mine. Owen J also referred to the High Court decision in Kavanagh and particularly to the statement that the words out of do indeed import causation while the words in the course of do not. He said, at 42: The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the work was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment. And it necessarily follows, I think, that the words 'arising in the course of his employment' ought not to be regarded as meaning anything more or less than 'arising while the worker is engaged in his employment'. In light of the passages from the judgements in Kavanagh's Case … quoted above there is no longer room for the notion that the words "in the course of the employment" require the proof of some causal connexion between the employment and the injury. It is sufficient if the injury occurs while the worker is performing the work he is engaged to do or is doing something reasonably incidental to that work… Owen J also dealt with the issue regarding an injury by accident. He said, at 44: It is plain that, notwithstanding that earlier threat, the time, place and nature of the assault was, from the point of view of the appellant, completely unexpected. But even if the appellant had thought it possible or even probable that he would be attacked while at work, I would have regarded him as having suffered a personal injury by accident within Lord Macnaghten's definition. Lord Macnaghten had previously defined the word accident to mean an unlooked-for mishap or untoward event which is not expected or designed (Fenton v J Thorley & Co. Ltd [1903] AC 443). In my opinion, given the way in which the High Court now regards the disjunctive expression arising out of or in the course of employment, I must find that Mr O'Loughlin's injury occurred in the course of his employment with Linfox. At the time he sustained the injury, he was doing precisely the work he was engaged to do on behalf of Linfox, that is, delivering fuel supplies to service stations. The verbal altercation preceding the fight which resulted in Mr O'Loughlin staining [sic] an injury took place while Mr O'Loughlin was doing the work he was required to do to refuel the holding tanks at the service station. Mr O'Loughlin did not initiate the fight but did retaliate after [the mechanic] threw punches at him. Those circumstances do not take the injury sustained by Mr O'Loughlin outside of the statutory framework, that is, it occurred in the course of his employment. It did not have a causal relationship with his employment but, as the High Court has now clearly stated, that is not required. (Emphasis added.) 86 The two grounds contained in Linfox's notice of contention are interrelated. I will deal first with the decision of the Victorian Court of Appeal in Martin v Bailey. 87 Martin v Bailey was also a case that arose out of an altercation. Bailey alleged in a proceeding brought in the County Court of Victoria that Martin had assaulted him. He sought damages for it. Martin relied on the defence that the claim was barred by s 134AB of the Accident Compensation Act 1985 (Vic), which prohibits, subject to specified exceptions, the commencement of a personal injury claim at common law if the plaintiff's injury arose out of, or in the course of, his employment. A judge of the County Court struck out the defence and Martin appealed. Maxwell P upheld the appeal (Redlich JA agreeing, Robson AJA dissenting). Before the Tribunal, Linfox sought to rely on this passage from the judgment of Maxwell P at (2009) 26 VR 270 at [22]: It would appear from [the authorities cited below] that two factors are of critical importance in determining whether the worker's injury has the requisite connection with the employment. The first is whether the altercation has its origin in an employment-related matter or in a personal or private matter. The second is whether, at the time the injury (or death) occurred, the worker was performing the duties of his/her employment. The following general propositions can be derived from the authorities: 1. If the altercation had its origin in an employment-related matter, the injury is likely to be regarded as having arisen 'out of the employment', [citing Reid v British & Irish Steam Packet Co (1921) 14 BWCC 20; Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119; South Maitland; Evans v Australian Gas Light Co [1958] 32 WCR (NSW) 30 ('Evans'); Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10]. 2. If the altercation had its origin in a private quarrel or a personal grievance, then the injury is unlikely to be compensable unless the worker was carrying out the duties of his/her employment when injured, and was not the aggressor [citing Kerr v Department of Prisons [1946] 20 WCR (NSW) 81; Walsh v NSW Government Stores Department [1950] 24 WCR (NSW) 1; Stojkovic; McCord v Commissioner for Railways [1943] 17 WCR (NSW) 116; Pensiero v Farthing [1981] 55 WCR (NSW) 197; Deatons Pty Ltd v Flew (1949) 79 CLR 370; Grierson v Poels & Co (Australia) Pty Ltd [1943] 17 WCR (NSW) 90; Evans; Rantino v Collins & Moss Pty Ltd [1983] 57 WCR (NSW) 95; Weston; McCurry v Lamb (1992) 8 NSWCCR 556; Inverell Shire Council v Lewis (1992) 8 NSWCCR 562; Makko v Bullock Manufacturing Pty Ltd (1997) 15 NSWCCR 308; cf Bill Williams Pty. Ltd v Williams (1972) 126 CLR 146]. 88 Senior counsel for Linfox dealt with Martin v Bailey over the course of three pages of transcript in his final address to the Tribunal. He cited it, and Deatons Pty Ltd v Flew (1949) 79 CLR 370, for the proposition that, even if the injury did not occur during an interval or interlude in employment, it was not sustained "in the course of" his employment. 89 In his oral submissions to the Tribunal, senior counsel summarised the facts (it must be said, with respect, somewhat imprecisely) in Martin v Bailey as follows: Bailey was actually employed by a company that operated a dairy farm on a property that Bailey owned. And Bailey was injured during a fight with Martin, who owned a neighbouring property. All a dispute about where a truck should be parking while it was unloading hay. In some unfortunate words were spoken during the dispute, and those words triggered violence, physical violence. And so the question was whether it could be said that the injury that Bailey suffered was one suffered in the course of employment … 90 He then quoted from the dissenting judgment of Robson AJA (now not relied on in this appeal) and read to the Tribunal from the judgment of Maxwell P at [22] (quoted above). Having done so, he continued: "I'll come back to how that applies for our case in a moment but that analysis is consistent with … Deatons Pty Ltd v Flew ...". 91 After dealing with the facts in Deatons Pty Ltd v Flew (1949) 79 CLR 370, and reading a passage from the judgment of Dixon CJ, senior counsel for Linfox made this submission, which is the crux of what Linfox now contends the Tribunal failed to consider: The first thing we want to say … is that Mr O'Loughlin's altercation with [the mechanic] did not have its origin in an employment related matter. There's no suggestion in the evidence that [the mechanic] had any interest in Mr O'Loughlin's employment or duties. Those duties, and their discharge, had no part to play in [the mechanic's] grievance against Mr O'Loughlin and that can be contrasted with Martin v Bailey, where the origin of the dispute had been the manner in which Mr Bailey, he was the plaintiff in the County Court, was discharging his duties. Nor can it be said that Mr O'Loughlin's actions were incidental to his work duties. From the time he called [the mechanic] back with the demand, "don't talk to me like I am a piece of shit", that his actions were more than, as it was put by Sir Owen Dixon in that case, "a spontaneous act of retributive justice". … So, what we are looking at here is whether the actions of Mr O'Loughlin broke the connection with his employment, so that by the time that is injury occurred, he was not the course of his employment. It is a simple proposition. It's a simple question of fact. But it does depend upon having regard to those events as they unfolded even if they unfolded quickly. 92 Counsel's written submissions about Martin v Bailey before the Tribunal were to similar effect. 93 Given the limited extent of the references to Martin v Bailey in his oral submissions, and given that senior counsel cited [22] of the judgment of Maxwell P in that case as containing an "analysis [that] is consistent with … Deatons v Flew" (an obvious enough proposition, because Maxwell P cited it), the Tribunal may have been forgiven for understanding that a passage from a decision of the Victorian Court of Appeal about a different statute, which did no more than summarise two factors of critical importance in cases of this type (altercation cases), based on case law dating back to 1921, was not what Linfox now contends was a separate submission requiring independent consideration. Nonetheless, I will proceed on the basis that it was. 94 In my view, the decision in Martin v Bailey is of no assistance to Linfox in this case and the fact that the Tribunal made no reference to it is neither here nor there. Quite apart from anything else, the very proposition from that case upon which Linfox seeks to rely - "[i]f the altercation had its origin in a private quarrel or a personal grievance, then the injury is unlikely to be compensable unless the worker was carrying out the duties of his/her employment when injured, and was not the aggressor" - begs, and does not answer, the factual question (answered by the Tribunal in this case in the affirmative) whether the worker was carrying out his or her duties when injured, and depends, in any event, on the worker being "the aggressor". That proposition - that Mr O'Loughlin was "the aggressor" - was disavowed by senior counsel for Linfox in the course of his cross-examination of Mr O'Loughlin. At page 18 of the transcript of the first hearing before the Tribunal, which was admitted into evidence before the Tribunal in the matter now on appeal (the first hearing being the subject of the successful appeal in O'Loughlin v Linfox Australia Pty Ltd (2015) 235 FCR 164: see [22] above) the following exchange occurred between senior counsel and Mr O'Loughlin: [Senior counsel]: And once [the mechanic] turned around and headed away from you the risk that you referred to in your recent statement, the risk of hazard to the petrol went away? [Mr O'Loughlin]: No. When he turned away from me he was still very aggressive, still mouthing off, still being abusive so how do I know what his reaction is going to be especially in a situation like that? I can't afford to him to turn around and go berserk and start throwing things at me and things like that. So I'm still talking to him and it's not - you're trying to make it sound like I'm the gristle and starting to try and - it's not, I was talking to him trying to calm him down saying, "mate just settle down, settle down, cut it out". [Senior counsel]: Certainly? [Mr O'Loughlin]: I'm not abusing him. [Senior counsel]: I'm not suggesting to you that you were being aggressive, I'm not suggesting that, I'm suggesting … [Mr O'Loughlin]: Sounds like it from this seat. [Senior counsel]: Well, I'm suggesting to you that you were making your own contribution to the confrontation between the two of you by insisting that [the mechanic] treat you with respect … (Emphasis added.) 95 In the circumstances in which the altercation occurred, it would be impossible to describe Mr O'Loughlin as "the aggressor", and the concession made by senior counsel in the course of his cross-examination of Mr O'Loughlin that he was not, was rightly made. 96 For those reasons alone, the submission that the passage in the judgment of Maxwell P in Martin v Bailey has relevance to this case, and that the Tribunal erred in law in not dealing with Linfox's submission about it, is unsustainable. 97 The second related ground in the notice of contention is that the Tribunal was nevertheless bound, by reason of the Tribunal's finding of fact and the uncontradicted evidence before it, to find that Mr O'Loughlin's injuries were not sustained in the course of his employment within s 5A(1)(b) of the Act. 98 The crux of this submission is that, because the Tribunal found (at [41]) that, had Mr O'Loughlin ceased his intervention with the mechanic when the mechanic walked towards the workshop for the first time, the matter would have ended there, and because it found (at [42]) that, had he also left at the point at which the woman in the car left the service station, nothing further would have transpired, the Tribunal was "bound", without more, to conclude as a matter of fact that Mr O'Loughlin's injuries were not sustained in the course of his employment. 99 I do not accept that argument. It is wholly artificial to separate one or two moments from what, for any other purpose, would be regarded as a single incident, and when senior counsel for Linfox himself conceded that the events "unfolded quickly" (see [91] above). Further, despite Linfox's submission to the contrary, the Tribunal was, on the evidence before it, entitled to conclude, as a matter of fact, that Mr O'Loughlin's injuries were sustained in the course of his employment and that the altercation was not a "private" one. 100 In my view, the Tribunal was entitled to find that Mr O'Loughlin's injury occurred in the course of his employment. The Tribunal's critical findings that: (1) "[a]t the time he sustained the injury, he was doing precisely the work he was engaged to do on behalf of Linfox, that is, delivering fuel supplies to service stations"; (2) the "altercation preceding the fight which resulted in Mr O'Loughlin sustaining an injury took place while Mr O'Loughlin was doing the work he was required to do to refuel the holding tanks at the service station"; and (3) Mr O'Loughlin did not initiate the fight but retaliated after the mechanic threw punches at him, did not take the injury sustained by Mr O'Loughlin outside of the statutory framework, were self-evidently open to it. 101 It follows that Linfox has not demonstrated any error of law in the Tribunal's reasons.

remedy 102 Section 44(4) of the AAT Act empowers the Court to "hear and determine the appeal and make such order as it thinks appropriate by reason of its decision": see Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 at 36 per Wilcox J, 42-43 per French J and 49 per von Doussa J. 103 In some cases, the appropriate order will be to remit the matter to the Tribunal to be heard and determined according to law. 104 In other cases, including those where only one result that is consistent with the Court's decision is possible, the appropriate order will be for the Court to make a decision in substitution for that under review: see e.g. Civil Aviation Safety Authority v Caper Pty Ltd (No 2) [2012] FCA 1305; 132 ALD 475. In my view, this is such a case, especially when Linfox has, throughout the lengthy history of this matter, sought to agitate every conceivable basis for refusing to pay Mr O'Loughlin the compensation which it had agreed to pay him in 2010, and to which the Court now finds that he is and was entitled.

Conclusion 105 Accordingly, the Court will order that: (1) The appeal be allowed. (2) The decision of the Administrative Appeals Tribunal dated 15 August 2016 be set aside. (3) The decision of the respondent of 7 January 2014 be set aside and substituted with a determination that the applicant is entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury which arose in the course of his employment on 7 September 2010. (4) The respondent pay the applicant's costs of the appeal. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.