Plaintiff v Defendant

1 Richard and Pauline Wilson live on a farm in Drysdale, Victoria at which place they were engaged in the employment of growing produce for sale to a local co-operative. In 2014, Mr Wilson was riding a bicycle recreationally with friends in Portarlington when he collided with the rear of a legally parked truck. He sustained a number of very serious injuries, in particular, paraplegia.

2 Mr Wilson applied for compensation under the Transport Accident Act 1986 (Vic) upon the basis that it was available in respect of collisions between a pedal cycle and a motor vehicle occurring while the cyclist was travelling to or from his or her place of employment. He contended that he was travelling to his farm when the collision occurred and this was his place of employment.

3 The Transport Accident Commission rejected Mr Wilson's application. It determined that compensation was not available because the collision occurred during a bicycle ride that was in no way work-related. Accepting this reasoning, the Victorian Civil and Administrative Tribunal dismissed Mr Wilson's application for review of the Commission's determination.[1]

4 In this appeal on a question of law under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), Mr Wilson contends that the tribunal has misinterpreted the applicable provisions of the Transport Accident Act. As conceded by the Commission, leave to appeal should be granted under s 148(1)(a). But for the following reasons the appeal must be dismissed.

Compensation under Transport Accident Act

5 As specified in s 1, the purpose of the Transport Accident Act is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents. By the Transport Accident (Amendment) Act 2000 (Vic), the Transport Accident Act was amended to include in the scheme persons injured in collisions between a pedal cycle and a motor vehicle where the cyclist is travelling to or from his or her place of employment.

6 Section 35(1) of the Transport Accident Act establishes the general entitlement to compensation for persons injured in transport accidents. It relevantly provides:

(1) A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if -

(a) the accident occurred in Victoria; or

(b) the accident occurred in another State or in a Territory and involved a registered motor vehicle and, at the time of the accident, the person was -

(i) a resident of Victoria; or

(ii) the driver of, or a passenger in, the registered motor vehicle.

7 As can be seen, the entitlement to compensation depends upon the person being injured as a result of a 'transport accident', which is defined in s 3(1) thus:

transport accident means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.

8 The Transport Accident (Amendment) Act amended the Transport Accident Act to include certain incidents in the expression 'transport accident'. The amendment is to be found in s 3(1A) of the Transport Accident Act, which provides:

(1A) For the purposes of the definition of transport accident in section 3(1) an incident includes an incident -

(a) involving a motor vehicle, a railway train or a tram which is out of control;

(b) involving a collision between a pedal cycle and an open or opening door of a motor vehicle;

(c) involving a collision between a pedal cycle and a motor vehicle while the cyclist is travelling to or from his or her place of employment;

(d) involving the opening or closing of a door of a bus, tram or railway train.

It is s 3(1A)(c) that is in issue in the present case.

9 The Transport Accident (Amendment) Act contains a purposive provision. As specified in s 1(a)(ii), its purpose is (among other things) to 'include as a transport accident a collision between a pedal cyclist travelling to or from work and a motor vehicle' (emphasis added). This is obviously a reference to the extended definition of 'incident' in s 3(1A)(c) of the Transport Accident Act. Section 35 of the Interpretation of Legislation Act 1984 (Vic) provides that interpretations of provisions that promote the purpose or object underlying legislation are to be preferred to interpretations that do not do so.

10 As we will see, there is a distinction in language between travelling to or from the 'place of employment' and the 'employment' and thus between the 'place of work' and the 'work'. The submissions made for Mr Wilson rely to some extent upon this distinction. Because it uses the expression 'travelling to or from work', the purposive provision somewhat blunts the significance of the distinction when interpreting the expression 'travelling to for from [the] place of employment' in s 3(1A)(c) of the Transport Accident Act. But I accept that the words to be interpreted in that provision are those words and not 'employment' or 'work'.

11 The Minister for Workcover described the intended operation of s 3(1A)(c) in the second reading speech in the following way:

The bill also extends access to TAC benefits to a cyclist who is injured in a collision with a parked vehicle while riding to or from work. Honourable members will be aware that a cyclist, such as a bicycle courier, who collides with a parked motor vehicle during the course of his or her work is eligible for Workcover benefits. However, as their respective [A]cts currently stand, neither Workcover nor the TAC provide access to benefits for cyclists injured in a collision with a parked vehicle while on their way to or from work. That anomaly is now corrected.[2]

Consistently with the purposive provision, the Minister used the expression 'work' and not 'place of work', also blunting the distinction somewhat.

12 The Minister also addressed incidents involving pedal cyclists and parked motor vehicles. The language of s 3(1A)(c) covers incidents involving pedal cyclists and parked motor vehicles because the term 'motor vehicle' in the provision is not qualified and therefore includes parked motor vehicles. However, by contrast with s 3(1A)(b), the cyclist must be 'travelling to or from his or her place of employment'. Therefore the coverage granted to cyclists injured in motor vehicle accidents is not unlimited. By contrast with the coverage extended to cyclists injured in incidents involving a collision between a pedal cycle and an open or opening door of a motor vehicle, which applies whatever be the purpose of the ride, cyclists injured in incidents involving a collision between a pedal cycle and a motor vehicle must establish that he or she was travelling to or from his or her place of employment.

13 The Minister referred to the anomaly that neither the workers' compensation nor the transport accident legislation provided access to benefits for cyclists injured in collisions with parked vehicles on their way to or from work. As regards the workers' compensation legislation, the Minister may be taken to have referred to the Accident Compensation Act 1985 (Vic).

14 Section 82(1) of the Accident Compensation Act provides:

(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

There is a rich jurisprudence on the general concept of injuries arising out of or in the course of employment[3] that is not presently relevant. The Accident Compensation Act also has specific provisions that deem certain injuries to be injuries arising out of or in the course of employment for the purposes of s 82(1). In particular, s 83(1)(b) includes in this category injuries occurring when, having regard to the nature of the worker's employment, the worker is 'travelling for the purposes of the worker's employment'. However, by s 83(2)(b):

travelling for the purposes of a worker's employment does not include travelling to and from the worker's place of employment [or certain other specified places].

15 The anomaly of which the Minister was speaking is the anomaly that, by contrast with drivers of motor vehicles, pedal cyclists riding their bicycles not for the purpose of their employment but to or from their place of employment would not, without the amendment, be entitled to injuries compensation under the Transport Accident Act. Drivers of motor vehicles not for the purpose of their employment but to or from their place of employment would at least be entitled to injuries compensation under that Act. Laudable though the correction of this anomaly undoubtedly is, the amending legislation is not a scheme for extending general coverage to cyclists involved in motor vehicle accidents of whatever kind. It is limited to cyclists injured in incidents involving collisions with a motor vehicle when travelling to or from the place of employment.

16 A feature of the Minister's speech is that it makes clear that, when amending the transport accident legislation, Parliament was conscious of the workers compensation legislation. As we will see, this is relevant when interpreting provisions of the former that have a well-accepted meaning under the latter.

17 Such is the legislative context for the appeal. Now to the proceeding in the tribunal.

Proceeding in Victorian Civil and Administrative Tribunal

18 The order of the tribunal from which Mr Wilson's appeal is brought is an order to affirm the determination of the Commission that he was not entitled to injuries compensation under the Transport Accident Act.

19 The application before the tribunal was conducted upon the basis of an agreed statement of facts, which read:

The applicant lives at 208 Princess Street, Drysdale on about 23 acres of land. Together with his wife, the applicant also operates a farm at that same address from which he sells produce to Buy Bellarine Incorporated/Produce Barn under the trading name 'Almondale'.

From approximately 1986 to 2005, the applicant was employed as a teacher.

Since the completion of the applicant's teaching career, the farm at Almondale is in fact and has been since approximately 2005 the applicant's place of employment.

On Wednesday, 9 July 2014 at approximately 07.30, the applicant met a group of his friends at the Ocean Grove Community Fire Authority on Shell Road, Ocean Grove to participate in a bicycle ride. The applicant and his friends had regularly met on a Wednesday morning at the same location to ride that route from Ocean Grove to Portarlington and back again.

On occasions, prior to the return trip some or all of the members would stop at a cafe in Portarlington.

On 9 July 2014 at about 08.45, the applicant was riding his bicycle in a westerly direction along the Esplanade, Portarlington when he collided with the rear of a parked truck. The truck was lawfully parked on the roadway immediately adjacent to 46 the Esplanade. There was no one in the truck. The truck's ignition was switched off.

As a result of the collision, the applicant sustained a number of injuries, including T2 complete paraplegia.

The purpose of the ride on 9 July 2014 was not connected with the farm operated by the applicant. The applicant intended to work on the farm when he returned from the ride.

The appeal in this court was conducted upon the same basis. Further, the tribunal found that, prior to the ride, Mr Wilson completed some tasks associated with his farm work. This finding was not challenged. It was also common ground in the appeal that, when Mr Wilson collided with the truck, he was engaged in the ride in the company of other riders and therefore was still engaged in a ride that was purely recreational in purpose.

20 At issue was the proper interpretation of the expression 'travelling to or from his or her place of employment' in s 3(1A)(c) of the Transport Accident Act. The tribunal concluded that the proper interpretation was one requiring a connection between the travel and the place of employment. Therefore, cyclists who lived and worked at the same place could not be regarded as travelling to or from their place of employment when engaged in a purely recreational ride to or from that place. As Mr Wilson's ride on the day concerned had no connection to travel to or from his place of employment, he was not entitled to compensation. Engaging in work before and after the ride was not sufficient because the ride itself was not work-related and he was injured when returning to his place of residence.

21 In the grounds of appeal, Mr Wilson fundamentally challenges this interpretation.

22 It was submitted on behalf of Mr Wilson that the tribunal erred in law in interpreting the expression 'travelling to or from his or her place of employment' in s 3(1A)(c) of the Transport Accident Act. He offered two interpretations of this provision as being legally correct in the alternative:

• There was no requirement in s 3(1A)(c) for the travel to be connected with the place of employment. It was enough that the travel be 'to or from' that place.
• Alternatively, such a connection was established where a cyclist was travelling to their place of employment where work would be done, whether the ride was recreational or not. It was immaterial that the cyclist was returning to a place that was also his or her place of residence.

23 These submissions must be rejected. As submitted on behalf of the Commission, Parliament intended the expression 'travelling to or from his or her place of employment' in s 3(1A)(c) of the Transport Accident Act to have a particular meaning. This is the meaning that, when the amending legislation was enacted, was well- accepted in relation to that and similar expressions in workers compensation legislation. According to that meaning, which I refer to as a contextual meaning, a work connection is factually required for the travel to be regarded a being to or from the place of employment.

Accepted interpretation of 'travelling to or from his or her place of employment'

24 It was correctly submitted on behalf of Mr Wilson that the applicable principles of interpretation require the language of the provision in question to be the focus of attention. As was stated in Project Blue Sky Inc v Australian Broadcast Authority[4] by McHugh, Gummow, Kirby and Hayne JJ:

The duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond to with the grammatical meaning of the provision.[5]

Likewise, in Australian Education Union v Department of Education and Children's Services[6] it was said by French CJ, Heydon, Kiefel and Bell JJ:

The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.[7]

In this connection, recent judgments of the High Court have warned against undue consideration of historical considerations and extrinsic materials. For example, in Alcan (NT) Aluminium Pty Ltd v Commissioner of Territory Revenue[8] is to be found this statement by Hayne, Heydon, Crennan and Kiefel JJ:[9]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.[10] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[11] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[12] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[13] in particular the mischief[14] it is seeking to remedy.[15]

25 In the present case, when Parliament enacted the amending legislation, the expression 'travelling to or from his or her place of employment' and other like expressions had been the subject of authoritative interpretation in a significant body of jurisprudence in relation to legislation that must be regarded as being in pari materia with the Transport Accident Act. It is reasonable to conclude that Parliament was aware of this jurisprudence, which forms an important part of the context in which that legislation is to be interpreted. Accepting Mr Wilson's submissions would disengage the interpretation of the provision in question from this jurisprudential context, contrary to what Parliament intended.

26 The principle that like expressions in legislation that is in pari materia with other legislation should be interpreted in like manner was stated by the Privy Council (on appeal from the High Court of Australia) in Lennon v Gibson and Howes Ltd:[16]

In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection.[17]

An example of the application of this principle is to be found in Ramaciotti v Federal Commissioner of Taxation.[18] The court was required to interpret the meaning of the expression 'active service' in s 13 of the Income Tax Assessment Act 1915-1916 (Cth) in relation to a member of the armed services. It did so taking into account the meaning of this expression in s 4 of the Defence Act 1903-1915 (Cth). As was held by Knox CJ (Isaacs and Rich JJ agreeing):

I think it is reasonable to suppose that the Parliament in framing ... s 13 of the Income Tax Assessment Act and in fixing active service as the criterion ... had in mind that definition, and intended that 'active service' should correspond with 'active service' as defined in the Defence Act. The phrase is one of art in a sense; and when we find in another Act which for this purpose is in pari materia a definition of that phrase, I see no reason for not giving it in the section now under consideration the same meaning as it bears in the other Act.[19]

27 As discussed by the learned authors of the leading text, courts determine whether legislation is in pari materia on a case by case basis.[20] Contrary to the submissions made for Mr Wilson, I think the provisions of the Transport Accident Act relating to compensation for cyclists involved in certain collisions with motor vehicles should be treated as being in pari materia with the relevant provisions of workers compensation and like legislation. I have come to this conclusion because the two bodies of legislation deal with similar subject matter, the expressions requiring interpretation are identical or similar and represent compensation eligibility criteria, the expressions had been the subject of authoritative determination and had a well-accepted meaning when the Transport Accident (Amendment) Act was enacted, the extrinsic materials show that, when enacting those amendments, Parliament was conscious of the workers compensation legislation and there is nothing to show a contrary intention. The subject matter of the two bodies of legislation is accident compensation, specifically in relation to injuries suffered by persons when travelling to or from the place of employment. The expressions in question are 'travelling to or from the place of employment' and like expressions, which form part of the eligibility criteria in the legislation concerned. The authoritative decisions establishing the well-accepted meaning of these and like expressions are discussed below. The extrinsic materials are primarily the contents of the second reading speech of the Minister, which I discuss above. Nothing in the purpose of the amending or principal legislation, the amending or principal provisions of that legislation or any extrinsic materials reveals any contrary intention.

28 That brings me to the authoritative decisions. An early and influential case was Davey v Union Steamship Company of New Zealand Ltd.[21] The facts were that a ship was in port taking cargo. After completing his duties, a cook went ashore in the evening to post a personal letter to his home. The ship was moored to a jetty. As the cook was walking along the jetty to return to the ship, he was struck and injured by railway trucks being pushed slowly along the jetty.

29 On those facts, Napier CJ held that the accident did not arise out of or in the course of the cook's employment nor while he was 'travelling to or from ... his place of employment' within the meaning of s 5AA(1) of the Seamen's Compensation Act 1911-1949 (Cth). The Chief Justice adopted a contextual approach to the interpretation of the provision - one that required factual inquiry into the purpose of the travel and whether it was connected with the employment. In his Honour's opinion, the provision did not cover returning to the place of employment after a purely private activity:

It seems to me that 'travelling to or from his place of employment' refers to a seaman who is joining his ship or going home. It may, perhaps, apply when a sailor is going on or returning from leave, and whether the place in which he spends his leave is his permanent home or a temporary residence, but it does not cover a seaman going to a race meeting, or to a public house for a drink, or, as in the present case, for a stroll ashore to post a letter. On the facts in evidence, the appellant was not travelling to or from the ship. He was returning from a walk ashore.[22]

As submitted on behalf of Mr Wilson, this approach may be subject to the criticism that it involves reading down the plain meaning of beneficial legislation. Napier CJ clearly understood that he was doing so but considered this to be justified because it is what Parliament intended, an approach which has been consistently adopted in relation to the interpretation of comparable legislation in the subsequent authorities and I think must be adopted in relation to the interpretation of s 3(1A)(c) of the Transport Accident Act.

30 So, in Commonwealth v Wright,[23] a soldier lived and performed work duties at a military camp. While off-duty (but not on leave) he went to a nearby town for private purposes. He was run down by a motor vehicle and killed when walking back to the camp on a highway. Section 9A(1) of the Commonwealth Employees' Compensation Act 1930-1954 (Cth) provided that compensation was payable where personal injury by accident was caused to an employee 'while ... travelling to or from - (a) his employment'. Relying upon the plain language of this provision, the soldier's mother, a widow, claimed compensation. Webb, Fullagar and Kitto JJ (Dixon CJ and McTiernan J dissenting) held that no compensation was payable.

31 The reasoning of the members of the plurality is not identical but a contextual interpretation was generally adopted. Webb J focussed upon the meaning of 'employment' in the legislation concerned. His Honour held that compensation was payable where the employee was returning 'to or from a state of activity called "employment", as distinct from the place where that activity takes place'.[24] Here the soldier was not travelling to perform the activity of employment but to his temporary place of residence. Fullagar J focussed upon the connection between the travel and the employment. His Honour held:

I think that there must be a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties.[25]

His Honour found no such connection between the return of the soldier to the camp and his employment. To Kitto J, the 'object of the journey is the critical matter'.[26] Approving Napier CJ in Davey, his Honour held that travelling to one's 'employment' did not encompass returning to a place of employment that was also a place of residence after a purely private journey away.[27]

32 There were powerful dissenting judgments in Wright. In particular, Dixon CJ adopted a literal interpretation to hold that that the word 'employment' was general and involved 'some movement by reason of the employment' such that 'the direction from which the man proceeds must be in some way be determined by his employment'.[28] McTiernan J agreed.[29] This position did not prevail in Wright and it has not prevailed in similar cases of equivalent authority since.

33 It is true that s 3(1A)(c) of the Transport Accident Act in the present case specifies the 'place of employment' and not the 'employment' as did the provision in issue in Wright. Therefore it not a binding decision on the meaning of s 3(1A)(c). Nonetheless, it supports a contextual approach to the interpretation of that provision and not the literal approach relied upon in the submissions made for Mr Wilson.

34 Then there is Adcock v The Commonwealth,[30] another military case concerning s 9A(1) of the Commonwealth legislation. An aircraftsman was stationed and quartered at an air base. When off duty (but not on leave), he worked on a friend's motor vehicle in the base car park and then travelled to the city to see a film. In the course of this journey, he was seriously injured in a motor vehicle accident. Fullagar, Kitto, Menzies and Windeyer JJ (Dixon CJ dissenting) held that the aircraftsman had not been injured while travelling 'from ... his employment'.

35 Returning to his reasoning in Wright and citing Napier CJ in Davey, Fullagar J emphasised the need for a connection between the employment and the travel. In a passage relied upon by the Commission in the present case, his Honour held:

The employment must be in some sense the occasion of the travelling. The conceivable circumstances of particular cases are so multifarious that it seems hardly possible to frame a single generalization which will express the necessary connexion and cover all cases that may arise.[31]

Kitto J repeated his reasoning in Wright (with a qualification not here material).[32] Menzies J held that the case was governed by the judgments in Wright.[33] Windeyer J held that the provision in question reflected the common policy of Australia's workers compensation legislation that journeys to and from work were treated as being within the course of employment.[34] Also citing Napier CJ in Davey, his Honour held that the aircraftsman's private excursion did not come into this category:

An excursion made by a man living at his place of employment for the purpose of going to the pictures in his hours off duty is not related or incidental to his employment. It is not comparable with the journey that an employee living at home makes to get to his work or to go home from his work. And it is not comparable with the journey that a man on being posted to a particular place has to make to take up his duties there. It is comparable rather with an excursion that for his own purposes an employee living at home makes in the evening after he has got home.[35]

36 There was another strong dissent from Dixon CJ in Adcock. As Mr Wilson submits should be done in the present case, the Chief Justice interpreted the applicable provision by reference to its plain language:

It appears to me that the case falls within the words of the Act and that is enough. There is no reason why we should mould them to accord with what to some may seem more reasonable, still less restrict them.[36]

Rejecting the employer's contention that the provision should be interpreted so as to require some work connection in the case of employees who are returning to a place of both residence and employment, the Chief Justice held:

The reason why I think such a limitation or modification is not possible is simply that it appears to me to be contrary to the language of s 9A(1) which is quite general and therefore neither contemplates nor, as I would think, admits of any exception or qualification.[37]

Again, this analysis did not and has not prevailed. The different wording of s 3(1A)(c) of the Transport Accident Act ('place of employment' and not 'employment') only somewhat reduces the strong persuasive influence of the decision of the plurality in Adcock, which was based upon a contextual interpretation.

37 Wright and Adcock were followed in Landers v Dawson.[38] At issue was the interpretation and application of s 8(2)(b) of the Workers Compensation Act 1958 (Vic). Under that provision, a worker was entitled to compensation when injured while 'travelling between his place of residence and place of employment'. A baker was injured when swimming for private purposes at a seaside resort at which he was making a delivery after which he intended to return to the bakery. Kitto, Taylor, Menzies and Owen JJ held that compensation was not payable because the provision was

designed to deal with cases in which the worker is travelling between his place of residence and his place of employment for the purpose of commencing work or of returning to his work after his work has finished.[39]

Admitting the different facts and legislative wording in the present case, this reasoning does not support Mr Wilson's submissions.

38 Adcock was applied in Commonwealth v Hollis.[40] A claim under s 9A(1) of the Commonwealth Employees' Compensation Act 1930-1967 (Cth) by a member of the armed services failed accordingly. The member had been stationed at a camp where he both lived and performed his duties. He was injured when returning to the camp after attending a dance on Saturday evening when off duty (but not on leave). Following Adcock, McTiernan, Taylor, Menzies, Windeyer and Owen JJ held that s 9A(1) did not apply to the employee because he was injured when returning to his residence from a private activity. Mr Wilson too was injured when engaged in private activity.

39 Adcock was distinguished in Australian Coastal Shipping Commission v Averell.[41] Here a seaman's ship was in a port, which happened to be near his home. His working day ended at 5 pm and he was free to leave the ship between 6 pm and 8 pm. He was injured while returning to the ship shortly before 8 pm after visiting his home. Section 5AA(1) of the Seamen's Compensation Act 1911-1964 (Cth) allowed for compensation in cases where a seaman was 'travelling to ... his employment'. Inquiring contextually into the facts of the case, McTiernan, Kitto and Menzies JJ held that compensation was payable:

In this case the fact that the applicant was returning from his home to the ship provides the terminus a quo and the terminus ad quem for the seaman's journey, so that it was rightly held that, in the circumstances stated, he was travelling to his employment, notwithstanding that he was required to and did live on board his ship.[42]

Because the seaman 'was returning from his home to his employment at the time he was injured',[43] their Honours distinguished the judgment of Napier CJ in Davey. The facts of the present case are not, in my view, so distinguishable.

40 Landers was followed in Whiting v Brambles Industries Ltd.[44] At issue was the interpretation and application of s 7(1)(b)(i) of the Workers Compensation Act 1926 (NSW). Under that provision, a worker was entitled to compensation when injured while 'travelling between his place of residence and place of employment', as under the equivalent Victorian legislation at the time. A worker travelled to his place of employment from his home but did not enter the gate of his employment and returned home because the premises were closed due to industrial action. Citing Lander, Barwick CJ, Gibbs, Mason, Jacobs and Murphy JJ interpreted the provision thus:

The word 'between' imports a relationship between the journey and the two places mentioned. The journey must have been along a route between the two places, and the worker must be travelling for some reason connected with his employment.[45]

Their Honour held that compensation was payable because the worker was travelling between the two places for the purposes of attending and returning from work which was a purpose connected with his employment.[46] Again admitting of the different wording of the current Victorian provision, that cannot be said of Mr Wilson, whose ride was entirely private.

41 The legislation at issue in Jamieson v Repatriation Commission[47] was s 107M(2) of the Repatriation Act 1920 (Cth). Compensation was payable under this provision where a member of the services was injured when 'travelling to or from his place of employment on defence service or peace keeping service'. The applicant was a military serviceman residing at an army camp. He was injured in a motor vehicle accident when off duty (but not on leave) when returning from a private social activity in the city on a Saturday evening. He was required to be present at parade on the Monday morning.

42 Fitzgerald J drew attention to the distinction between the phrase 'place of employment' in s 107M(2) and the phrase 'employment' in similar legislation. Of that distinction, his Honour said:[48]

There is not the slightest doubt but that if the phrase in s 107M(2) were not 'to or from his place of employment' but 'to or from his employment', the appellant must fail.[49] The latter case determined what had earlier been unclear, that the reason why the appellant would fail would be not because the camp was not his place of employment merely because he was living there but because he was not 'travelling to his employment' although travelling to the place where he was employed. Whether or not an employee was travelling to his employment 'depends not only on the place to which he was traveling but on the purpose for which he was going there'.[50]

The line of decisions of the High Court to which reference has been made demonstrated beyond argument that the present appellant's journey would not satisfy the purposive element involved in travel 'to his employment' if that were the test. However, the appellant quite correctly points to the different phrase in s 107M(2) of the Act.

Nonetheless, Fitzgerald J considered that the phrase 'place of employment' had an accepted meaning, which must be adopted despite the generality of the language at first sight.[51] Citing the judgment of Napier CJ in Davey and its approval in judgments in Wright, Adcock and (implicitly) in Averell, his Honour held that compensation was not payable where a worker was injured returning to a place of both residence and work from private activity:

Without either suggesting that what was said by Napier CJ affords a judicial substitute for the statutory language or attempting an exhaustive explanation of what is meant by the provision, his Honour's statement is clear authority for the proposition that an employee (or a member of the services) who resides at the place where he is employed will not be travelling to his place of employment if he left it for private purposes, is not returning from a period of even temporary residence elsewhere, and his immediate purpose for returning is that the place to which he is travelling is the place at which he resides. No more is needed to defeat the appellant's claim.[52]

This analysis is a strong and persuasive endorsement of the contextual approach to the interpretation of the phrase ' travelling to or from [the] place of employment' in legislation that is in pari materia with s 3(1A)(c) of the Transport Accident Act. In my view, that provision should be so interpreted in the present case.

43 As can be seen, in Jamieson Fitzgerald J referred to Commonwealth v Duncan.[53] Here the provision in question was s 32(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Combined with other provisions, it created an entitlement to compensation for injuries suffered while the employee was engaged in a journey 'from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end)'. The employee was a corporal who was injured on the way home from an airforce base. After finishing his work, he stopped to drink at the airmen's club at the base before travelling home. At the time of the accident, he was alcohol affected.

44 The Administrative Appeals Tribunal held that the employee was entitled to compensation because he was injured on a journey from his employment. Upholding the appeal, Kelly and Fitzgerald JJ (Franki J dissenting) held that the tribunal had failed to appreciate the difference between injury sustained during a journey from the 'place of employment' as distinct from the 'employment'. After discussing Wright, Adcock and other authorities, Kelly J held:

what has to be determined is whether the respondent was journeying from a state of activity called employment, using that word in its appropriately ample sense, and not whether he was journeying from his place of employment.[54]

Fitzgerald J emphasised the need to consider the purpose for which the employee was 'at the place of employment and engaged in the travel':

I consider that it is now established by a series of decisions of the High Court, commencing with Commonwealth v Wright, that the question whether an employee, including a member of the services, was travelling from his employment depends not only on the place from which he was travelling but on the purpose for which he was there, and that the question whether an employee was travelling to his employment depends not only on the place to which he was travelling but on the purpose for which he was going there. In a number of the cases an employee lived at the place at which he was employed which therefore had a dual role: see Commonwealth v Wright and Adcock v Commonwealth. I do not think that it can be determined whether an employee was or was not, at the time at which he was injured, on a 'journey ... from his employment by the Commonwealth' within the meaning of s 32(1) of the Act by reference merely to the place from which he was travelling; investigation is also necessary into his activities whilst he was there as to their relationship, if any, with his employment. For present purposes, the place at which a man is employed will not, in all circumstances, necessarily be his place of employment in the sense that it can be said that, if he is travelling from that place, he is travelling from his employment.[55]

The reasoning of Kelly and Fitzgerald JJ also draws attention to the difference in language between the 'place of employment' and the 'employment'.[56] This does not much assist Mr Wilson because their Honours adopted a contextual approach to the interpretation of the latter that, in relation to s 3(1A)(c) of the Transport Accident Act, also applies to the interpretation of the former.

45 I will bring the various strands of my general analysis together in this conclusion.

46 It may be accepted that the function of statutory interpretation is to identify the intention of Parliament by reference to the language of the provision in question. The intention of Parliament can usually be ascertained by reference to the plain meaning of that language and, furthermore, beneficial legislation, such as the Transport Accident Act, is interpreted beneficially, not restrictively, consistently with its purpose, unless a contrary intention is established.

47 The present case concerns the meaning of the expression 'travelling to for from [the] place of employment' in s 3(1A)(c) of the Transport Accident Act. On a plain reading of those words, Mr Wilson was travelling to his place of employment when injured on the ride because he worked on the farm where he lived and that is where he was travelling. However, the analysis in this judgement has demonstrated that, when this provision was introduced by the Transport Accident (Amendment) Act, it and like expressions in the provisions of comparable legislation had a long-accepted meaning. The long-accepted meaning involved a contextual approach to the application of such provisions requiring determination of whether, on the facts of the case, the travel in question was connected to the employment at the place. In the absence of a contrary intention, Parliament is taken to have been aware of and relied upon this meaning when enacting the amending legislation.

48 I say in the absence of a contrary intention because it cannot be assumed that, when enacting the amendments, Parliament necessarily intended to adopt the long-accepted meaning. Consideration of the language, object and purpose of the amending and principal legislation might reveal that Parliament intended to enact a provision that was to be interpreted without reference to that meaning. However, there is nothing of that kind or anything else to suggest that Parliament intended the provision to be interpreted in a different manner. In my view, it intended the long-accepted meaning to prevail.

49 The attempts made in the submissions for Mr Wilson to distinguish the decided cases must be rejected. As accident compensation legislation, the Transport Accident Act may be relevantly compared with the workers compensation and similar legislation at issue in those cases. The analysis in this judgement reveals that, in such legislation, a contextual approach is adopted to the interpretation of expressions like travelling to and from the 'place of employment' and the 'employment'. As regards the interpretation of the relevant provisions of the Transport Accident (Amendment) Act, the purposive provision and the second reading speech somewhat undercut the submissions made for Mr Wilson based on the undoubted difference between these two expressions. But the main response to these submissions must be that a contextual approach is adopted to the interpretation of both.

50 On the undisputed facts, Mr Wilson undertook work before and intended to undertake work after the ride at the place where he both lived and worked - the farm. Contrary to the submissions made on his behalf, this does not bring the case within s 3(1A)(c). On the proper interpretation of this provision, the question is whether the ride was connected with employment at the place. This criterion is not satisfied by a rider's intention to undertake employment at the place after completing a ride that was not connected to that employment.

51 The court has great sympathy for the personal position of the plaintiff and his wife. He suffered life-changing injuries in an accident involving a motor vehicle. As a matter of policy, one may wonder why riders who run into parked cars on their bicycle and suffer serious injury should receive only public health and welfare benefits while drivers who run into parked cars in their motor vehicle receive transport accident compensation. The difference especially matters when the consequence is an injury as serious as paraplegia. But, as a matter of law, the extension of coverage for transport accident compensation to bicycle riders involved in motor vehicle accidents that was introduced in the Transport Accident (Amendment) Act was not comprehensive. Except where the collision involves an open or opening door of a motor vehicle, the incident will be covered only where the rider is 'travelling to or from [the] place of employment'. According to the long-accepted meaning of this expression, a connection between the travel and employment at the place is required. This connection was absent on the facts of the present case. Therefore the tribunal did not err in law and the appeal must be dismissed.

[1] Wilson v Transport Accident Commission [2016] VCAT 1063 (27 June 2016) (H Lambrick, Deputy President).

[2] Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2000, 937 (Robert Cameron) (emphasis added).

[3] See generally Henderson v Commissioner of Railways (Western Australia) [1937] HCA 67; (1937) 58 CLR 281, Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 and Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246.

[4] (1998) 194 CLR 355 ('Project Blue Sky').

[6] [2012] HCA 3; (2012) 248 CLR 1.

[8] [2009] HCA 41; (2009) 239 CLR 27 ('Alcan').

1. [10] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72, 77 [9] (Gaudron, Gummow, Hayne and Callinan JJ), 89 [46] (Kirby J); Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193, 206 [30] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 240-1 [167]-[168] (Kirby J); Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, 143 [6] (Gleeson CJ); Director of Public Prosecutions (Vic) v Le [2007] HCA 52; (2007) 232 CLR 562, 586 [85] (Kirby and Crennan JJ); Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, 642 [99] (Crennan J).
2. [11] Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529, 538 [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 555-6 [82]-[84] (Kirby J). See also Combet v The Commonwealth (2005) 224 CLR 494, 567 [135] (Gummow, Hayne, Callinan and Heydon JJ); Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, 642 [99] (Crennan J).

[12] Hilder v Dexter [1902] AC 474, 477-8 (Earl of Halsbury LC).

[13] Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, 397 (Dixon CJ), quoted with approval in Project Blue Sky (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ). Commissioner for Railways (NSW) v Agalianos[1955] HCA 27; (1955) 92 CLR 390, 397Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355, 381 [69]

[14] Heydon's Case [1584] EngR 9; (1584) 3 Co Rep 7a, 7b [76 ER 637, 638].

[15] Alcan [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47].

[16] [1919] AC 709.

[18] [1920] ArgusLawRp 123; (1920) 29 CLR 49.

[20] DC Pearce and RS Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014) 128-9 [3.36]-[3.37].

[21] (1953) SASR 35 ('Davey').

[23] [1956] HCA 79; (1956) 96 CLR 536 ('Wright').

[25] Ibid 552. Fullagar J also drew attention to the fact that the legislation had formerly spoken of travelling to or from the 'place of employment'. It had been amended simply to speak of 'employment', which was a different concept: ibid 552-3; see also Dixon CJ at 545 and Kitto J at 558. It is therefore necessary to keep in mind in the present case the precise nature of the words used in the relevant provision.

[30] [1960] HCA 24; (1960) 103 CLR 194 ('Adcock').

[31] Ibid 203-4. His Honour cited Davey with approval at 204.

[38] [1964] HCA 35; (1964) 110 CLR 644 ('Landers').

[40] [1968] HCA 79; (1968) 118 CLR 305 ('Hollis').

[41] [1969] HCA 38; (1969) 122 CLR 348 ('Averell').

[44] [1976] HCA 51; (1976) 134 CLR 464.

[47] (1984) 2 FCR 311 ('Jamieson').

[49] See Wright [1956] HCA 79; (1956) 96 CLR 536; Adcock [1960] HCA 24; (1960) 103 CLR 194; Hollis [1968] HCA 79; (1968) 118 CLR 305; Averell [1969] HCA 38; (1969) 122 CLR 348.

[50] Commonwealth v Duncan [1938] ArgusLawRp 27; (1982) 64 FLR 335, 354 (Fitzgerald J) ('Duncan'); cf Norwest Beef Industries Ltd v Janides [1983] FCA 138; (1983) 77 FLR 119.

[51] Jamieson (1984) 2 FCR 311, 317.

[53] [1938] ArgusLawRp 27; (1982) 64 FLR 335.