Scharrer v The Redrock Co Pty Ltd

Reasoning in Commission 112 The Arbitrator appears to have decided the case not on the basis that this was a "journey claim" within the terms of s 10, but on the primary basis of liability under s9. The Arbitrator stated at 8.14 of his reasons: "I believe the point that Ms Scharrer intended to make was that the employer provides the means of transport to and from work and that the employer requires, expects and authorises Ms Scharrer to use that transport to and from work and that the employer requires, expects and authorises Ms Scharrer to use that transport for that purpose as incidental to servicing and supplying the respondent's customers. If that be so, then Ms Scharrer would be in the course of her employment whilst using that transport. By the employer's supplying the transport to Ms Scharrer she makes travelling something incidental to the performance of her actual duties. ( Smith's case in 6.2 above [114]). That is the travel to and from work by Ms Scharrer using Respondent provided transport was incidental to her employment and therefore whenever she does that she is in the course of her employment. In other words, Ms Scharrer was, as were other sales representatives of the Respondent, in the course of their employment the moment they drive the vehicle from their home to the time they arrive back to their home at the completion of a day's work and all time in between." 113 The Arbitrator accepted that sales representatives were provided with vehicles which they could use for personal, as well as work-related, purposes. Whether the fact that they were used, and expected to be used for (in the Arbitrator's words) journeys "to and from work", meant that those journeys were necessarily within the scope of the employment, was an issue addressed later by the Arbitrator. 114 The Arbitrator sought to distinguish between "the traditional method of employment", where employees "usually leave their place of abode to attend the same place of employment and at the end of their working day return home generally along the same route" from that involving the appellant: Reasons at par 9.5. The comparison was drawn at par 9.6 in the following terms: "On the other hand, persons who are employed on the basis of being provided with an all purpose vehicle to enable them to efficiently and effectively service their employer's customers or clients by proceeding immediately from their home to wherever, are actually in the course of employment from the moment they exit the entrance to their abode and do not cease being in the course of their employment until they enter the entrance to their abode at the end of their working period. If for some reason a person so employed gets injured at any point from the time they leave to the time they return, s10 of the 1987 Act does not apply as they were not on a periodical or daily journey to or from the employment." 115 The Arbitrator concluded at par 9.7: "Upon the above reasoning I therefore find that Ms Scharrer was in the course of her employment when she was injured being satisfied, from the site of the accident in comparison to where her abode in Beecroft was, that she was returning home after a day doing what she was expected and authorized to do (on the road servicing customers) and following attendance upon the Christmas Party organized and paid for by the Respondent all of which was conceded was in the course of her employment. She was injured before she got back to her abode so therefore the car trip, on my reasoning, was also in the course of her employment." 116 It was appropriate for the Arbitrator (and the Deputy President) to consider first whether the appellant was within the course of her employment at the time of the accident, for the purposes of ss 4 and 9 of the 1987 Act. Section 10 expands the primary basis of entitlement, but does not prevent the payment of compensation for any personal injury which, apart from the section, is an injury within the meaning of the 1987 Act: s 10(5A). 117 On review, the Arbitrator's decision in favour of the appellant was reversed. The critical passage in the reasoning of the Deputy President commenced at [91], where he said: "The worker in this matter was in the course of her employment certainly up until she left the staff party. Beyond that point she was entitled to the benefit of the provisions of the Acts if it be established that it was her intention to travel home. I address the questions raised concerning the journey provisions (section 10 of the 1987 Act) below. It is common ground that upon leaving the party the worker got into the vehicle and proceeded to drive. Accepting for the moment that it was the worker's intention to drive home it is my view that her disobedience of her employer's directions concerning driving and her decision to drive whilst having the blood alcohol concentration as noted was conduct that prevents the characterisation of her subsequent conduct up until the point of impact and injury as being in the course of employment within the meaning of section 4 of the 1987 Act. On the present facts the question is not whether the conduct I have highlighted took the worker outside her employment but whether by reason of her conduct she was not nor was she ever at any relevant time in the course of her employment. In my view, as stated, the worker was not in the course of her employment once she elected to drive off in the staff motor vehicle." 118 He also addressed the separate claim that the injury was received on a journey to which s 10 of the 1987 Act applied. Such journeys include daily or other periodic journeys between the worker's place of abode and place of employment: s 10(3)(a). On one view, the appellant's journey fell within that category, notwithstanding that she was going home from the Christmas party and had taken significantly longer than would usually be expected for the trip. The employer did not contend that there was any interruption or deviation from the journey, which would take the injury outside the terms of s 10: cf s 10(2). The critical provisions relied upon in s 10 were as follows: " 10 Journey claims (1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. (1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker. (1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999, unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily." 119 The Deputy President found that the appellant was under the influence of alcohol at the relevant time. He also found that the appellant had failed to establish either that the alcohol "did not contribute in any way to the injury", or that it had not been consumed or taken voluntarily: at [117]. Accordingly, he held that the injury was taken to be attributable to her serious and wilful misconduct and s 10(1) did not apply. The result was that the injury was not one "arising out of or in the course of employment" and compensation was not payable. 120 Because the Deputy President held that the trip home did not occur in the course of her employment, he said that it was not necessary for him to consider the operation of ss 9A and 14: at [101], [104]. He did, however, make findings in respect of those provisions, but they tended to flow, as a practical matter, from his conclusion that the appellant was not "in the course of her employment" once she elected to leave the party in the staff motor vehicle: at [105]-[108]. 121 The Deputy President noted that the appellant's entitlement was said to be founded upon the combined operation of ss 4 and 14 of the Workers Compensation Act: at [92]. The definition of "injury" in s 4 has already been noted. Section 14 provides as follows: " 14 Conduct of worker etc (1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received: (a) acting in contravention of any statutory or other regulation applicable to the worker's employment, or of any orders given by or on behalf of the employer, or (b) acting without instructions from the worker's employer, if the act was done by the worker for the purposes of and in connection with the employer's trade or business. (2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement. (3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury." 122 Given the factual finding of serious and permanent disablement, the appellant contended that her disobedience or serious and wilful conduct did not take her outside the course of her employment. Were it otherwise, s 14 would have no purpose. This contention was rejected by the Deputy President, in substance because he considered that both sub-ss 14(1) and (2) operated only where the worker was otherwise in the course of her employment. (There was no suggestion that s 14(3), relating to intentional self-inflicted injury, was in issue.) Having held that she was not acting in the course of her employment at the time of the accident, his Honour also dismissed her arguments based on s 14(1) and (2): at [105]-[106]. It will be necessary to turn to the reasons given for those conclusions shortly.

Grounds of appeal 123 The notice of appeal contained three grounds which, in substance, complained that the Deputy President had misdirected himself in respect of -

(1) the primary basis of entitlement (injury arising in the course of employment); (2) the construction of s 14 of the Act, and (3) the construction of s 9A of the Act. 124 For reasons which will appear below, it is not necessary to address the third ground, concerning the operation of s 9A. It is sufficient to note that s 9A requires that the employment was a substantial contributing factor to the injury, although it does not apply to journey claims. 125 In respect of the first and principal ground, the appellant asserted, either as a proposition of law, or as the only conclusion available on the evidence, that the appellant was "in the course of her employment" from the time she left home until she returned to her home at the end of the day. The submission was that because her employer provided the appellant with a motor vehicle and expected her to use the vehicle for her work, including travelling to and from work, she was in the course of her employment until she returned home at the end of a working day. If she were to use the vehicle the next morning, she needed to take it home the night before. Her period of work, on a daily basis, therefore extended from the time she left her home in the morning until she returned in the evening. This proposition was said to flow from the test adopted by the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473, and the principles applied to workers supplied with a motor vehicle, in Smith v Brown (1998) 16 NSWCCR 492. 126 The written submissions in relation to the second ground of appeal referred only to the manner in which the Deputy President had applied s 14(2) of the Act. 127 Despite the ambiguous nature of the notice of appeal (referring generally to s 14) and the clear restriction in the written submissions to the misdirection with respect to s 14(2), senior counsel for the appellant, in the course of oral argument, also complained about the manner in which the Deputy President dealt with s 14(1). Senior counsel suggested that the subsections "seem to be directed to different aspects of the same problem and they both seem to share a common legislative history which seems to have had as its objective permitting workers to recover in cases of serious injury, whereas a matter of prior statutory provision they wouldn't otherwise have been able to recover": Tcpt, 24/06/10, p 16(20). Senior counsel for the respondent appeared to accept that, for a proper understanding of the approach adopted by the Deputy President, it was appropriate to consider the operation of s 14(1). On his submission, the whole of s 14 was governed by the definition of "injury" in s 4 so that, wherever it appeared in s 14, there needed to be an injury in the course of employment: Tcpt, p 27(5)-(20). 128 These submissions gave rise to the following issues:

(a) was the appellant necessarily "in the course of" her employment from the time she left home on the morning of 14 December 2001, until she arrived home that night?

(b) alternatively to (a), was it open to the Deputy President to conclude that when she left the Christmas party, she failed to prove that she embarked and continued until the time of the accident on a journey home, as opposed to a journey for her own personal purposes, so as to be no longer in the course of her employment at the time of the accident?

(c) if the reason why she was no longer in the course of her employment was her blood alcohol reading (being considerably above the prescribed maximum) and the disobedience to her employer's direction not to drive, was she nevertheless entitled to compensation, pursuant to either - (i) s 14(2), or (ii) s 14(1) because she had suffered serious and permanent disablement? 129 The answers to the last two questions will depend in part upon the following matters of construction, namely:

(e) whether the term "injury", in each subsection of s 14 has the defined meaning provided in s 4, and

(f) whether the s 14(1) provides an independent entitlement to compensation in circumstances where the primary entitlement under s 9 is not satisfied? 130 The answers to these questions require consideration of the legislative history of the relevant statutory provisions, both in the New South Wales legislation and in the relevant progenitors in the United Kingdom. Much of the legislative history, together with a consideration of the concurrent case law, is to be found in the dissenting judgment of Powell JA in Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45 at 60 ff. It is reconsidered here, only so far as is necessary to address the specific questions raised above.

Statutory history 131 The proper construction of s 14 of the Workers Compensation Act, and its inter-relationship with ss 4 and 9, cannot properly be understood without reference to the statutory history. The progenitor of the New South Wales Act was the Workmen's Compensation Act, 1897 [60 & 61 Vict, Ch 37] ("the 1897 UK Act") which contained two elements of critical importance: "1. (1) If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as herein-after mentioned, be liable to pay compensation …. (2) Provided that:- … (c) If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed." 132 Two aspects of those provisions are noteworthy. First, the primary test involved the combination of two elements, namely that the injury be one arising "out of" the employment ("the causal condition") and "in the course of" the employment ("the temporal condition"): see Smith v Australian Woollen Mills Ltd [1933] HCA 60; 50 CLR 504. Secondly, the exception in relation to serous and wilful misconduct contained an element of uncertainty of purpose. On one view, it may have been intended to do no more than place the burden of proof on the employer in relation to such misconduct, once it was shown the accident appeared to have arisen out of and in the course of the employment. On the other hand, it was open to read the proviso as based on an assumption that, without such express provision, an injury attributable to serious and wilful misconduct could nevertheless be found to arise out of and in the course of the employment. 133 In its original form, there was no need to resolve the inter-relationship of the primary test and the exception. However, in 1906 the proviso was amended to include an exception with the effect that compensation would be disallowed as a result of serious and wilful misconduct, "unless the injury results in death or serious and permanent disablement": Workmen's Compensation Act 1906 ("the 1906 UK Act"). Putting to one side the addition of the word "solely" before the phrase "attributable to serious and wilful misconduct of worker", the language found in s 14(2) of the 1987 Act follows that of the 1906 UK amendment. 134 That amendment did require consideration of the relationship between the primary provision and the exclusionary provision. In AG Moore & Co v Donnelly [1921] 1 AC 329 a miner who had breached a regulation was denied compensation. As explained by Lord Blanesburgh in the subsequent case of Thomas v Ocean Coal Co Ltd [1933] AC 100 at 114: "Donnelly in the course of his employment fired a shot by means of a fuse and detonator and retired. But in contravention of para 3(a) of the [Explosives in Coal Mines Order of 1913] he returned to the place of the shot in less than an hour, when the shot, which had missed fire, blew off in his face and permanently injured him. It was held that the Order was such that his breach of it took him outside the sphere of his employment, so that the risk in which he had involved himself had ceased to be reasonably incidental to that employment. In other words, his accident had not arisen out of and in the course of his employment as required by section 1, subsection (1), to which, as Lord Dunedin had pointed out, section 1, subsection (1)(b), was merely a rider." 135 In 1923, the 1897 UK Act was amended to include a provision, (s 7 of the Workmen's Compensation Act 1923) which later became s 1(2) of the Workmen's Compensation Act 1925, in the following terms: "(2) For the purposes of this Act, an accident resulting in the death or serious and permanent disablement of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the workman for the purposes of and in connection with his employer's trade or business." 136 This provision was the progenitor of s 14(1) of the 1987 Act. As explained in Thomas v Ocean Coal, the deeming provision effectively set up a new test to be applied in such cases; Lord Blanesburgh stated at 114-115: "It is instructive to see how this result has been accomplished by the new section. It is not by a statutory statement equivalent to an assertion that such an accident as Donnelly's did in fact arise out of and in the course of his employment. Such a statement would not have been true even in the mouth of the Legislature. It has not been made. What the section has said is that such an accident as Donnelly's, with any other accident covered by the terms of the section, shall be deemed to have arisen out of and in the course of the workman's employment whether in fact it did so nor not. In other words - differing in this from section 1, subsection (1)(b) - section 1, subsection (2) does not require that an accident within its scope shall arise out of and in the course of the employment at all. It is enough that the accident is of such a character that complying the conditions of the subsection it may thereunder 'be deemed' to have so arisen." 137 Section 14(1) of the 1987 Act is not in terms a deeming provision, nor does it refer to the causal and temporal conditions in s 4; it merely states that compensation "is payable" where its terms are complied with. Its language contrasts with that of ss 10, 11 and 12 which identify circumstances in which "for the purposes of this Act" the causal or temporal conditions in s 4 are satisfied. Subject to two further issues which remain to be addressed, one would expect from the legislative history that s 14(1) would operate, independently of the primary basis of entitlement, as achieved by the 1923 amendment to the 1897 UK Act. 138 There are two qualifications which need to be considered. First, as pointed out by Lord Atkin in Noble v Southern Railway Co [1940] AC 583 at 595-596, in the case of less serious injuries, it may still be necessary to consider whether an act of the worker, in contravention of a regulation applicable to the employment, or an order given by the employer, might take the conduct outside the scope of the primary test. Secondly, it will be necessary to consider whether the provision relating to "serious and wilful misconduct" operates in New South Wales as it did following the 1906 UK Act, namely as a rider to, and therefore relevant only when there had been satisfaction of, the primary test. Thirdly, where, on its face, the act was undertaken for the purposes of and in connection with the employer's business, it was not necessary to look at the subjective motive of the worker in disregarding the relevant regulation or instruction: Noble at 590 and 593-594 (Viscount Maugham); 596 (Lord Atkin). 139 Before leaving the UK legislation, it should be noted that there was (and is) no provision equivalent to s 10 of the 1987 Act with respect to periodic journey claims. That was a matter of some significance because the early English case law, discussed by Nielson J in the Compensation Court in Smith v Brown (1998) 16 NSWCCR 492 (relied on by the appellant) identified circumstances in which journeys to and from work could be seen as satisfying the test of being "in the course of employment". It was those cases, many of which dealt with travel by train to inaccessible places of employment, that led Nielson J to conclude that where a shearing contractor provided transport for a team of shearers to move between properties and their homes, the passengers in the car were in the course of their employment whilst travelling from a rural property, where they had been working, to their homes in Walgett. (Having reached that conclusion, his Honour nevertheless discussed the operation of s 10, to determine whether there had been a deviation or other basis for excluding the journey from one in which the passengers and driver were engaged, in the course of their employment, prior to the accident.) 140 The current United Kingdom provision reflects the extent to which journeys were covered by the primary basis of entitlement, according to UK case law: see Social Security Contributions and Benefits Act 1992 (UK), Pt V "Benefit for Industrial Injuries": s 99. The uncertainty arising from the earlier case law was described in 1986: see Lewis R, "Accidents Whilst Travelling and the Limits of Compensation for Industrial Injury" (1986) J Soc Welfare L 193. 141 The second qualification derives from the legislative history in New South Wales. The first Act in this State, the Workmen's Compensation Act 1910 (NSW) ("the 1910 Act") in fact derived from a New Zealand Act of 1900, but it is not necessary to refer to that source. The operative provision of the 1910 Act, s 5, providing the primary basis of entitlement, faithfully reflected s 1(1) of the 1897 UK Act. However, thereafter the form changed, s 6 not being by way of proviso to the primary basis of entitlement, but merely stating that the employer "shall not be liable" in respect of an injury "which is directly attributable to the serious or wilful misconduct of the workman". Section 5(1) and (2) of the Workmen's Compensation Act 1916 (NSW) ("the 1916 Act") reverted to the form of the 1897 UK Act, without the exception for serious and wilful misconduct giving rise to serious and permanent disablement. In other words, the 1916 Act did not pick up the amendments made by the 1906 UK Act. 142 Significant amendments were made by the Workers Compensation Act, 1926 (NSW) ("the 1926 Act"). The operative provision became s 7, which relevantly provided: "7.(1) A worker who receives personal injury - (a) in the course of his employment, whether at or away from his place of employment; or (b) without his own default or wilful act, on the daily or other periodic journey between his place of abode and his place of employment, (and in the case of the death of the worker, his dependants) shall receive compensation from his employer in accordance with this Act. … (2) Compensation shall be payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received, in a place not directly concerned with his employment, but forming part of the employer's premises, or acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the worker for the purposes of and in connection with his employer's trade and business. (3) Provided that - … (b) if it is proved that the injury to a worker is solely attributable to the serious and wilful misconduct of the worker, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed; (c) no compensation shall be payable on account of any injury to or death of a worker caused by an intentional self-inflicted injury." 143 This legislation picked up not only the 1906 UK amendments, but also the 1923 amendments. However, the structure of the Act had the potential to confuse the effect of the amendments. Thus, the provisos, now contained in sub-s (3) potentially affected not only the primary liability (contained in sub-s (1)), but also the daily or other periodic journey extension (contained in sub-s (1)) and the separate liability for serious and permanent disablement notwithstanding that the act was unauthorised or prohibited (now contained in sub-s (2)). Whether the variation caused by the restructuring was intentional, is not clear. 144 The Workers' Compensation (Amendment) Act 1929 (NSW) ("the 1929 Amendment Act") made further critical changes. It replaced s 7(1), but only so as to exclude the journey provisions from that subsection. More importantly, it replaced sub-s 7(2) so as to adopt the deeming provision in respect of unauthorised or prohibited conduct adopting the language of the 1923 UK amendment. 145 It may be noted that the novel structure of the 1926 Act omitted any reference to "arising out of" employment and, putting to one side journey claims, referred only to injury "in the course of" employment. The replacement of s 7(1) by the 1929 Amendment Act also removed reference to "in the course of" employment and introduced, for the first time, a definition of "injury" to mean "personal injury arising out of and in the course of the employment", to be included in s 6. That had the potential for significant confusion, which subsists today. The combination of the causal and temporal conditions in the primary provision, s 7(1), was not controversial. However, the creation of the new definition meant that the same factors were introduced (for the first time) in the alternative basis for compensation in s 7(2). 146 The creation of the separate definition was to have a further consequence when, in 1942, the provisions for journey claims were reintroduced. Was the term "injury" then found in s 7(1)(b), limited to an injury as defined? If so, it would have been unclear to what extent the new provision expanded the basis for entitlement to compensation. 147 The omission of the reference to the causal and temporal conditions appears to have arisen from adopting the scheme of the Workers' Compensation Act 1916 (Qld), which in turn appears to have relied upon an assortment of progenitors, including ones obtained from States of the USA. In the second reading speech of the 1929 Amendment Bill, the Minister stated (NSW Parliamentary Debates (2nd series) vol 117, 22 March 1929, p 4073, col 2): "The first amendment deals with the definition of 'injury'. It brings that definition into line with the definition of the word 'accident' in the English Act. Both words mean the same thing." 148 The precise import of the Minister's statement is neither clear nor accurate. However, it is evident that the potential consequential effects of including the causal and temporal conditions within a new definition, were not intended or, in all likelihood, appreciated. It seems unlikely that the structural change was intended to affect the operation of the substantive provisions. 149 Further changes have occurred, the significance of which may not have been appreciated at the time. Thus, the definition section in the 1926 Act (s 6(1)) commenced, "In this Act, unless the context or subject matter otherwise indicates or requires". Those words were not changed with the introduction of the new definition of "injury" in 1929. However, in the 1987 Act, the definition of "injury", now found in s 4, is not the subject of qualifying words relating to contrary intention. 150 In Webb v The Commissioner for Railways (NSW) [1938] HCA 24; 59 CLR 593 the High Court considered a claim by a worker under s 7(2), which, following the 1929 Amendment Act, deemed unauthorised acts to arise out of and in the course of employment in the circumstances prescribed. The worker had findings of fact against him in the Commission, with which the Court was not prepared to interfere. Rich J noted that it had been conceded that the injury could not have been found to have arisen out of and in the course of his employment: p 603. Nevertheless, that did not preclude his claim under s 7(2). His Honour held that the terminology "for the purposes of and in connection with his employer's trade or business" was "wider than the worker's employment": p 604. There was no suggestion in Webb that the definition of "injury" should be imported into the deeming provision, a step which would tend to render the provision ineffective. Whether that principle still prevails is less clear. 151 Not only have the introductory words to the definition section changed, but other provisions have been introduced. Thus, there are now provisions, said to operate "for the purposes of this Act", and thus in the nature of deeming provisions, which incorporate journey claims (s 10), recess claims (s 11) and claims by trade union representatives (s 12), as providing that certain injuries are injuries "arising out of or in the course of employment". Section 9A, which precludes compensation in respect of injuries unless the employment concerned "was a substantial contributing factor to the injury", does not apply to those provisions just referred: s 9A(4). However, there is no express exclusion in relation to s 14(1), despite the fact that that provision, in its earlier emanations, had, although not entirely consistently, been treated as an independent basis for an entitlement to compensation. 152 Thus, in Tompsett v Southern Portland Cement Ltd (1941) 41 SR(NSW) 126, Jordan CJ described the deeming provision in s 7(2) as dealing "… only with cases where, but for some breach of regulation, etc, the worker would have been acting within the scope of his employment. It does not touch the case where, irrespectively of any prohibition, the thing done would stand outside the scope of his employment": at 130. 153 This proposition is sourced to the language of Lord Blanesburgh in Thomas v Ocean Coal at 115. Whether or not that support is available from the statement of Lord Blanesburgh, language supportive of the view explained by Jordan CJ may be found in the opinion of Lord Buckmaster, to which his Honour had earlier referred. 154 In Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239 at 247-248, the Northern Territory Court of Appeal, considered the statutory equivalents in that jurisdiction of subss 14(1) and (2) of the 1987 Act. The first relevant provision of the Workmen's Compensation Act 1949 (NT), subs 7(1), was in the usual form for a primary entitlement, providing for an injury arising out of or in the course of employment. Subsection 7(3) contained the exception for serious and wilful misconduct, in terms equivalent to s 14(2) of the 1987 Act (but omitting the qualifier, "solely"). Subsection 7(4) was similar in structure and effect to s 14(1) of the 1987 Act. 155 Relying on observations of Lord Macmillan in Harris v Associated Portland Cement Manufacturers Ltd [1939] AC 71 at 83-84, the Court in Tiver concluded that it was, in respect of a claim engaging each of subss 7(1), (2) and (4), open to the employer to demonstrate that the injury did not occur in the course of employment, regardless of the internal statutory exception. That approach was followed by the majority in this Court in Higgins v Galibal Pty Ltd (t/as Hotel Nikko Darling Harbour) (1998) 45 NSWLR 45 at 54 (Priestley JA, Stein JA agreeing; Powell JA dissenting). However, the suggestion that the analysis of Lord Macmillan applied in respect of s 7(4), which was the equivalent of s 14(1) of the 1987 Act, dealing with unauthorised activity is inconsistent with the context in which His Lordship spoke and the legislative history, as then well-understood 156 Two other variations in the legislation over time need to be noted. First, the dual requirement in the definition of "injury" in s 6 of the 1926 Act (as amended in 1929) was replaced in 1942, so as to make the causal and temporal factors alternative bases for entitlement: Workers' Compensation Act and Workmen's Compensation (Broken Hill) Act (Amendment) Act 1942 (NSW), s 2(a)(ii). That is, it was sufficient (prior to the enactment of s 9A) if the injury either arose out of the employment or arose in the course of the employment. For the latter to be satisfied, no causal link was required: Kavanagh v The Commonwealth [1960] HCA 25; 103 CLR 547 at 556 (Dixon CJ), dealing with similar language in s 9(1) of the Commonwealth Employees' Compensation Act 1930 (Cth). 157 Secondly, a more expansive view of the "course of employment" has been taken in relation to worker's living away from home or temporarily away from their place of residence, being cases commonly referred to as "interval" or "interlude" cases: see, eg, Hatzimanolis. 158 Much of the debate appears to have arisen from the use in Hatzimanolis of the term "gross misconduct" as a basis for taking a worker outside the course of his or her employment, during an interval within an episode of employment: at 484. It has been treated as significant that the High Court did not use the well known phrase "serious and wilful misconduct", although the phrase used may differ in meaning only in respects which are immaterial: see Tiver at 246-8; Higgins at 57E (Priestley JA). 159 Whether or not that is so, it is clear that the High Court in Hatzimanolis did not direct its attention to s 14(2) in the 1987 Act. If it had, it would have needed to consider whether the worker suffered a serious and permanent disablement. Hatzimanolis, therefore, does not address the question which arises in the present case, namely whether s 14(1) provides an independent entitlement to compensation, whereas s 14(2), consistently with its historical origins, constitutes an exception from the primary entitlement, subject to a qualifying exception in favour of injuries resulting in death or serious and permanent disablement. In Higgins, Priestley JA concluded (p 58B-C): "Thus, I read s 14(2) as if it said: 'If it is proved that an injury to a worker which but for this subsection would because of the worker's serious and wilful misconduct be denied compensation under s 9 because of the case law taking the worker out of the defined meaning of injury, by virtue of this subsection when that injury is solely attributable to the serious and wilful misconduct of the worker and results in death or serious and permanent disablement compensation is payable in respect of that injury.'" 160 His Honour stated that he adopted that approach, because the only alternative would be to give s 14(2) "no operation at all". However, that appears to give s 14(2) a form similar to s 14(1) as an independent source of entitlement. Historically the provisions served different functions; s 14(2) started life as a limitation on the primary entitlement in the case of relevant misconduct. When a qualifying exception was made to it, in the case of death or serious and permanent disablement, the appropriate reading required that the primary entitlement to compensation was restored, by disregarding the disqualifying misconduct: it did not create a new form of entitlement. Thus the injury must, at that time, otherwise have arisen out of and in the course of the employment. 161 It is also necessary to refer to the decision of this Court in WorkCover Authority of NSW v Walsh [2004] NSWCA 186. That case involved a worker employed as a truck driver who, on a break during a trip from Wagga Wagga to Sydney, took methamphetamine to keep him awake for the remainder of the journey, but died as a consequence of taking the drug. A claim by his dependants succeeded before the Commission. In this Court, an appeal by the WorkCover Authority, (being the party responsible for the uninsured employer) was dismissed. 162 The reasoning was largely unremarkable. It involved two considerations of no present relevance, first, the Court rejected an argument based upon what were said to be analogous circumstances in which a claim had failed, namely where a worker left his duties, went to a room within the place of employment, and injected himself with heroin, as a result of which he collapsed over a heater and suffered serious burns: see Pollock v Stickfast Labels Pty Ltd (In liq) [2002] NSWCA 360; 24 NSWCCR 279. In Pollock the act of the worker was entirely unrelated to his employment, being to satisfy a personal addiction. In Walsh, the ingestion of methamphetamine was to permit the worker to continue with his work, namely to keep himself awake through a long period of driving. Secondly, Walsh rejected a claim that the death was an intentional self-inflicted injury, within the scope of s 14(3). 163 Relevantly for present purposes, Walsh turned upon rejection of the proposition that, whilst his conduct was otherwise in the course of his employment, the deceased's act in taking methamphetamine was "gross misconduct" and took him outside the course of his employment. After a careful consideration of the leading authorities, Tobias JA rejected that submission on two "independent" bases. The first was that s 14(2) "neutralised" the effect of the "gross misconduct": at [56]. The second was that the misconduct was not such as to take him outside the course of his employment in the sense that his act was "entirely foreign or repugnant to his employment": at [56]. In the end his Honour concluded that "the ingestion by the deceased of the amphetamines did not take him outside the course of his employment" but that, if it did, "s 14(2) applies to entitle his dependants to compensation": at [63]. 164 There remains the question of the relationship of s 14(1) to the primary basis of entitlement. The legislative history suggests it provides an independent basis of liability. On the other hand, the placement of the conditions of entitlement in a definition section place that view in doubt. 165 Generally, the importation of a definition into the language used in an operative provision will be understood to be subject to an implied qualification, "unless the contrary intention appears", in the absence of express language to that effect: Interpretation Act 1987 (NSW), s 6. That implication arises because it is always necessary to read the language of a statute in context, a principle which applies as much to a definition as to an operative provision. No doubt it is appropriate, as emphasised in Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [6.62], not to depart too readily from the direction as to meaning provided by an express definition. On the other hand, as explained by Dixon CJ in the context of another provision of the 1926 Act, in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; 92 CLR 390 at 397: "It may be illogical to speak of a man as a recipient of a sum of money in prescribing the calculation on the result of which his receiving the money is contingent, but the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed." 166 The importance of the general principle that words must be read in their context so as to give effect, consistently and coherently, to the apparent purpose of the provision so read, has been described as a "cardinal rule of statutory interpretation": K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315 (Mason J). For that reason, the absence of an express provision, and even the deletion of an express provision, in relation to contrary intention, is not determinative of the circumstances in which the definition of "injury" should be applied. 167 History suggests that the s 4 definition of "injury" should not be imported into s 14(1), which has its own criteria of connection with the employer's trade or business. That construction, however, was considered and rejected, after expressly addressing the history of the provision, in Love v Lysaghts Works Pty Ltd (1957) 57 SR(NSW) 70 (Herron, Sugerman and McClemens JJ). Even McClemens J, who dissented as to the result, felt unable to support such a construction as it would have involved the term "injury" being used in its defined sense in one part of then s 7, but not in another. His Honour concluded that a finding that the injury arose from an act done "for the purposes of and in connection with his employer's trade" (being the final words of the present s 14(1)) satisfied the alternative (causal condition) in the definition of "injury", as arising out of the employment: at 90. (The other members of the Court were unable to determine whether such a factual finding had been made.) 168 The need to satisfy at least one limb of the definition of "injury", when applying s 14(1), has been followed by Nielson J in the Compensation Court in Clyde v State of New South Wales (TAFE Commission) [1995] NSWCC 38; 12 NSWCCR 541 at 561 and Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; 16 NSWCCR 165 at [48]. It was also followed by this Court in Wheeler v Commissioner for Railways [1969] 2 NSWR 474. It was not suggested in the present case that this line of authority should not be followed, nor that it was clearly wrong. 169 In any event, whether s 14(1) provides an independent basis of entitlement, or whether the use of the term "injury" imports the definition including the primary basis of entitlement, is not a matter which needs to be determined in these proceedings, despite the fact that the issues were raised on the arguments presented by the parties. It is sufficient to assume, in favour of the appellant, that an independent basis of claim is available under s 14(1). On the findings of fact made by the Commission, as discussed below, such a claim would fail.

Application of principles 170 The Deputy President noted the question in the present case as "whether, when the staff party concluded and once behind the wheel of the staff car with an intention to drive [the appellant] was still in the course of her employment": at [86]. 171 On the approach adopted above, that question was to be determined by reference to the primary basis of entitlement, contained in s 9, with reference to the definition of "injury" in s 4. Because the injury was found to have resulted in "serious and permanent disablement" the fact that the injury was solely attributable (if that were a fact) to the serious and wilful misconduct of the worker, was irrelevant: s 14(2). 172 The Deputy President concluded that the appellant was "entitled to the benefit of the provisions of the Acts if it be established that it was her intention to travel home" when she left the party: at [91]. That approach appears to have been based on the assumption that travel from the last place at which she was present in the course of her employment for the day, to her home, fell within the course of her employment, merely because she was provided by her employer with a vehicle. The assumption raised a large question which appears not to have been addressed in the Commission. It is by no means clear why driving home (in a company car) should form the basis of an entitlement to compensation in the event of injury, absent a claim under s 10, relating to "journey claims". However, because of the limited right of appeal and the manner in which the appeal was conducted, the assumption noted above must be accepted. 173 The Deputy President approached the issue on the basis that use of the employer's vehicle for personal purposes, followed by a trip home, even on a work day, did not necessarily arise out of or occur in the course of employment. Whether for work-related or personal purposes, no doubt the appellant's use of the vehicle was subject to conditions, although those were not referred to in the argument in this Court. Subject to those general conditions, it seems unlikely that the worker was subject to any greater degree of control or direction by her employer when travelling home, than when taking the vehicle to go shopping. To say she was furthering the interests of her employer in going home, because she would have the vehicle available for the next occasion of work-related use, is not a legally determinative consideration, nor even, it might be thought, one of material weight. The approach adopted by the Deputy President was undoubtedly open. 174 The Deputy President then considered whether she was entitled to compensation "founded upon the combined effect of the operation of section 4 and section 14 of the 1987 Act": at [92]. That meant, in effect, that she needed to establish that, at the time of the "subject misconduct", she was in the course of her employment and her act was not "foreign or repugnant to" her employment, to use the language of Tobias JA in WorkCover Authority of NSW v Walsh [2004] NSWCA 186 at [56]. 175 The critical finding was that the appellant had "failed to establish she was in the course of employment during the one hour period between leaving the party and the occurrence of injury": at [101]. Because s 14(2) operated as a qualification in respect of serious and wilful misconduct which occurred only where the course of employment test was otherwise satisfied, that provision was held to be of no assistance to the appellant. 176 The findings of primary fact from which the Deputy President reached this conclusion were as follows:

(i) in normal traffic, it took the appellant 30 minutes to travel from her employer's office in the City to her home in Beecroft; (ii) the period between leaving the party at the bottom of King Street in the City and the accident on Epping Road (well short of Beecroft) was one hour; (iii) the appellant had a blood alcohol reading of .124 shortly after the accident, and (iv) she had been directed by her employer not to drive in her inebriated state.

The inference that she was driving home was established: the inference that she was coming from a place of employment was not, given the significant lapse of time, unexplained, between leaving the party and the accident. Even on the assumption that a trip directly from the party to her home would have been in the course of her employment, the inference that she was not engaged in such a trip at the time of the accident was open to the Deputy President on the primary facts. His conclusion in this respect did not involve an erroneous decision in point of law. 177 It remains necessary to consider the appellant's argument that the Deputy President failed to apply the principles established in Hatzimanolis. However, the reliance on that decision was misconceived. The claimant in that case was working at a remote mine site in Western Australia, the employer providing rent-free accommodation for its workers at a camp. He was injured on a site-seeing journey on his day off. The High Court accepted that he was entitled to compensation "on the ground that the appellant sustained injury during an interval occurring within an overall period or episode of work and while engaged, with his employer's encouragement, in an activity which his employer had organized": at 476. Because, the appellant argued, her employer had provided her with a car, and "authorised, encouraged or permitted" her to use the vehicle to drive home after work, it followed that she remained in the course of her employment until she reached home. That submission, however, omits two critical statements of principle in Hatzimanolis. First, their Honours said (at 482): "However, it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way." 178 On the alternative approach, the relevant episode of work concluded when she left the party because, although the period might have included the trip from the party to her home, she failed to establish that she commenced such a trip when she left the party. 179 Secondly, unlike Hatzimanolis, this was not a case where the worker was living away from home so as to permit the conclusion that the overall period or episode of work extended beyond the hours required in a particular day. As the joint judgment also stated (at 483): "The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work." 180 Accordingly, although the principle stated in Hatzimanolis may be seen as expansive of the concept of "course of employment", it did not in terms apply to the present circumstances. 181 The Deputy President thought it unnecessary, given the findings noted at [176] above, to consider other arguments put forward by the appellant, including the application of s 14(1). Assuming that s 14(1) provided a separate basis for entitlement, not dependent upon demonstrating an entitlement on the primary basis, namely an injury arising out of or in the course of employment, the Deputy President further held at [105]: "Given the Arbitrator's findings at [9.10] of Reasons, the worker may not place reliance on the provisions of section 14(1) given that it could not be said that the act of driving and her disobedience of the direction not to drive could be perceived as having been done by the worker for the purposes of and in connection with the employer's trade or business." 182 These brief observations demonstrate the dangers of seeking to address matters which are thought not to be in issue. They can be characterised as "anticipatory comments", made without a proper consideration of the relevant issues, and open to be given little or no weight: see Wade v Burns [1966] HCA 35; 115 CLR 537 at 555 (Barwick CJ). The findings of the Arbitrator, which the Deputy President had set out at [77] of his own reasons, included the fact that her blood alcohol reading meant that she was driving in contravention of a statute applicable to her employment and also that she was driving in contravention of orders given by her employer. However, those were the matters which were to be disregarded in considering an entitlement under s 14(1). Section 14(1) would be internally incoherent if the very matters which were to be disregarded were to lead to the conclusion that the act was not done by the worker "for the purposes of and in connection with the employer's trade or business". That test, as noted above, was deliberately adopted to avoid any question as to whether disobedience to instructions or statutory regulation resulted in the action of the worker falling outside the course of his or her employment. 183 Despite the erroneous approach to s 14(1) and on the assumption that it could provide an independent basis for a claim, putting to one side the fact that she was not within the course of her employment at the time of receiving the injury, this was not a case where the worker could succeed under that provision. Having concluded that she had left the party, not to go home, but to follow some personal pursuit, it could not be said that at the time of the accident the appellant's act of driving was being done for the purposes of and in connection with the employer's business. This language was introduced into the legislation before there was express provision for journey claims (or recess claims). It was designed to provide an entitlement where, as in the coal mining cases, the courts were inclined to exclude from the course of employment prohibited acts, even though such acts were clearly undertaken for the purposes of the employer's business, and not to further some purpose or interest of the worker. 184 Accordingly, in the circumstances of this case, no different result could have been reached by applying the correct test, even if it had been open to treat s 14(1) as an independent basis of claim. 185 In the circumstances, it is not necessary to address the potential operation of s 9A. It is sufficient to note that the treatment of journeys from a place of abode to a place of employment as falling within the course of employment as primarily defined will lead to the application of s 9A, so as to require that the employment concerned be a substantial contributing factor to the injury. That requirement, understandably, does not apply to a journey claim, nor to a recess claim. Thus an expansive approach to the scope of the course of employment test in s 4, so as to exclude reliance on ss 10 and 11, will not necessarily be beneficial to the worker's entitlements. 186 Finally, to the extent that the appellant relied upon her injury as one received in the course of a journey covered by s 10, she failed because the entitlement arising out of s 10(1) did not to apply if the injury were attributable to the serious and wilful misconduct of the worker: s 10(1A). The conduct was so attributable if the worker was at the time of the accident under the influence of alcohol, unless the alcohol did not contribute in any way to the injury: s 10(1B). The Deputy President held that those exceptions were engaged so that the appellant could not succeed under s 10(1): at [115]. That conclusion was not challenged on the appeal. Nor, it appears, was it contended that the worker could obtain the benefit of s 14(2), as a limitation on the operation of s 10(1A): see Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328.

Conclusions 187 It follows that, in resolving the appeal from the decision of the Arbitrator, the Deputy President made no decision in point of law which was legally erroneous in a material respect. The appeal to this Court must be dismissed. The appellant must pay the respondent's costs of the appeal. 188 HANDLEY AJA: I have had the benefit of reading the judgments of McColl JA and Basten JA in draft. They have set out the facts, the findings of the Deputy President, the current legislation and the legislative history, here and in the United Kingdom, behind the current legislation. There is no need for me to repeat this material. 189 Section 14(1) of the 1987 Act, construed in the light of its legislative history and the judicial interpretation of its predecessors, applies to an injury defined in s 4. The relevant paragraph of the definition is in that part of para (a) which covers personal injury arising in the course of the worker's employment. There is an established line of authority on its predecessor, s 7(2) of the 1926 Act, inserted in 1942, derived from s 1(2) of the Workmen's Compensation Act 1925 (Imp) (the 1925 Act). 190 As Jordan CJ said in Tomsett v Southern Portland Cement Ltd (1941) 41 SR (NSW) 126, 130: "... s 7 (2) deals only with cases where, but for some breach of regulation etc the worker would have been acting within the scope of his employment. It does not touch the case where, irrespectively of any prohibition, the thing done would stand outside the scope of his employment." 191 This decision was followed and applied in Love v Lysaght Works Pty Limited (1956) 57 SR (NSW) 70; Wheeler v Commissioner for Railways [1969] 2 NSWR 474 CA; and Higgins v Galibal Pty Limited (1998) 45 NSWLR 45 CA. The headnote for Love v Lysaght Works is incorrect because it includes the text of s 7(1)(a) in the 1926 Act, and not the section inserted in 1929 which was in force when Love was injured. 192 Section 14(1) does not assist the appellant because driving home after the employer's Christmas party was not an "act done by the worker for the purposes of and in connection with the employer's trade or business". The Deputy President's finding to that effect was not vitiated by legal error, and cannot be disturbed. 193 The appellant also relied on s 14(2). This must also be construed in the light of its legislative history here and in the United Kingdom, and the judicial interpretation of its predecessors, s 7(3)(b) of the 1926 Act and s 1(2)(c) of the Workmen's Compensation Act 1906 (Imp) (the 1906 Act) and s 1(b) of the 1925 Act. 194 Section 14(2), like its predecessors, prima facie denies any entitlement to compensation where "it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker." The result does not depend on the judicial exegesis of the scope of the worker's employment, but on the text of the section. 195 In Hatzimanolis v ANI Corporation Ltd [1992] HCA 21, 173 CLR 473, 484 the plurality said with reference to the facts of that case: "... an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment." 196 This dictum, about the effect of gross misconduct, was made in respect of the 1987 Act, which contained s 14(2) in its current form. The section applies to all injuries sustained by a worker including those received during an overall period or interval of work, which was the situation in Hatzimanolis. This dictum led Priestley JA to say in Higgins ((1998) 45 NSWLR at 58): "Against this background, what seems to me to be the only workable approach to s 14(2) is that it is written on the assumption that in its absence, compensation under s 9 would be denied to a worker (because on the authorities 'serious and wilful misconduct' would have the result that an injury suffered by a worker guilty of such conduct would neither arise from nor be in the course of employment) and that the provision was inserted to reverse that result by precluding the application of the case law to 'serious and wilful misconduct' of the worker resulting in death or serious permanent disablement." 197 Compensation in cases of serious and wilful misconduct has been denied by statute in the United Kingdom from the very first, by the Workmen's Compensation Act in 1897 (Higgins at 60), and in this State from the very first, by the Workmen's Compensation Act in 1910 (Higgins at 63). Disentitlement in such cases has never depended on a finding that the injury was not received in the course of the worker's employment. Although misconduct could take the worker outside the course of his employment in some cases, serious and wilful misconduct will disentitle the worker in all cases unless it results in death or serious and permanent disablement. 198 There is no reason for thinking that the plurality in Hatzimanolis intended to establish a new principle independent of the text of s 14(2). In any event the statutory text must prevail: Ogden Industries Pty Limited v Nash [1970] AC 113, 127, 129. The plurality's reference to gross misconduct should, in my judgment, be understood as a reference to the effect of that section. 199 Section 14(1) and its predecessors here and in the United Kingdom dealt with some of the special problems created by statutory or other prohibitions which were ignored by a worker. In some cases prohibitions could limit the scope of the worker's employment. A deliberate breach could also constitute serious and wilful misconduct. The former were addressed in part by s 14(1), the latter by s 14(2). 200 In my judgment s 14(2), as the text indicates, does not deal with the scope of the worker's employment. It assumes an injury which arises out of or in the course of the worker's employment which created a prima facie entitlement to compensation. It then denies that entitlement in cases of proved serious and wilful misconduct except where the injury results in death or serious and permanent disablement. 201 The Deputy President found [101] that the worker had failed to establish that she was the course of her employment during the one hour period between leaving the party and the occurrence of the injury. In my judgment that finding was not vitiated by legal error and cannot be disturbed. 202 It cannot be said that the employer expressly or impliedly induced or encouraged the worker to drive herself home in the company vehicle. Her employer prohibited her from doing this and the worker is not protected from the consequences of her deliberate disobedience by s 14(1) because the act of driving home was not done for the purposes of and in connection with the employer's trade or business. I also reject the appellant's general submission that her entitlement to use a company vehicle for private as well as corporate purposes brought all her driving of the vehicle for private purposes within the course of her employment. 203 I am therefore in substantial agreement with Basten JA and support the orders he has proposed.

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