Scobie v KD Welding Co Pty Ltd

Both young men had their place of abode at Minto. They were employed by the respondent company and at the date of the accident the place of their employment was Moorebank which lies close to Liverpool, so close, it was said, that it may be looked upon geographically as portion of Liverpool. After leaving their work between 4.15 p.m. and 4.30 p.m. on Friday, 23rd April 1954, they rode from Moorebank into Liverpool to obtain some purchases and visit an hotel. In this way they spent an hour and a half or thereabouts. After that interruption they returned back and passed the factory premises where they had been at work. Their journey to Minto would occupy about twenty minutes but at a point short of Minto they made a further deviation which in the opinion of the learned judge who heard the claims was not substantial in what it added to distance or time. It was said to be for the purposes of communicating with the brother of one of them. The diversion made it necessary for them to turn off the bitumen road and go over a very bad stretch of gravel road. This was Fields Road. The result of the delay since they had left work was that darkness overtook them. That meant that they made the journey after dark instead of in daylight.

The accident occurred during the deviation upon Fields Road. It occurred through the motor cycle veering to avoid a pedestrian who suddenly came out from the side of the road, there being another pedestrian on the other side. Apparently it was the brother in question. The driver of the motor cycle swerved and is said to have hit a bridge and overturned the cycle in a culvert. In these circumstances the learned judge found that but for the interruption they would have been going home in daylight instead of darkness, that they would have travelled along a highway, but that the accident was caused neither by the darkness nor by the rough surface of the road but by the conduct of the pedestrian. If it were not for the proviso to s. 7 (1) (b) these circumstances would bar the recovery of the appellants for clearly the deviation or interruption of the journey at Liverpool was substantial and in spite of the learned judge's comment I should regard the deviation in Fields Road as "substantial" in all the circumstances.

At the time of the decision of this Court in Selby Shoes (Australia) Pty. Ltd. v. Erickson [1] the proviso to s. 7 (1) (b) was as follows: "An interruption of or deviation from any journey shall not be deemed to be substantial if, in the circumstances of the particular case, the nature, extent, degree and content of the risk of injury were not materially changed or increased by reason only of any such interruption or deviation." In that case the Court decided that this proviso or qualification did not apply to s. 7 (1) (b) (ii) dealing with other breaks in journey as distinguished from substantial interruptions and substantial deviations from the journey dealt with by par. 7 (1) (b) (i). Shortly after that decision and no doubt for the purpose among other things of overcoming its effect, the legislature substituted for the proviso the following: "Provided that a worker (and in the case of the death of the worker, his dependants) shall be entitled to receive compensation under this paragraph notwithstanding that the injury was received during or after any substantial interruption of, or substantial deviation from or other break in any journey, if in the circumstances of the particular case, the risk of injury was not materially increased by reason only of such substantial interruption, substantial deviation or other break." Upon this proviso the learned judge of the Workers' Compensation Commission allowed the claims of the two young men and made an award of compensation in their favour. His reason is expressed in the following passage in his judgment: "The only evidence before me is that the accident happened in a sudden emergency that was brought about by the activity of pedestrians on one side of the road or the other. In other words, not only were the darkness and the rough surface of the road on which they travelled factors which in my opinion materially increased the risk of injury, but also this activity of the pedestrians. It seems to me that even in broad daylight the action of a pedestrian who steps suddenly from the kerb on the roadway may cause a motorist or cyclist to deviate from his course and lose control of his vehicle. Therefore, if the action of the pedestrians was an element in the causation of the accident, as I feel it was, the injuries did not occur because the substantial interruption added risks of injury which were the only ones. A third risk, the behaviour of the pedestrians, contributed to the accident. The onus rests upon the respondent to establish this defence, and it follows from my remarks that there must be an award to the applicant in each case."

On a case stated to the Supreme Court this decision was reversed [1] . Their Honours took the view that it was not possible to construe the proviso as enabling a worker to recover where in truth the risk of injury was materially increased by the interruption or deviation simply because the actual injury sustained was attributable to something other than the increased risk. Their Honours said: "The proviso is not concerned with the cause of the injury in fact sustained and whether that injury was or was not due only to a risk arising from the interruption. Indeed it is difficult and perhaps impossible to imagine a case in which the only cause of the injury could be the interruption. What it deals with are the hazards of the journey and whether those hazards have or have not been increased to a material extent by the worker's action in interrupting his normal journey to and from his place of employment. If he, for his own purposes, substantially interrupts his normal journey he is no longer to be regarded as being in the course of his employment unless it be shown that that interruption did not, of itself, materially increase the risk of injury during or after that interruption. Whether the particular hazard which results in or contributes to the injury arises from the interruption is irrelevant". [2] In other words, as travelling in darkness and upon a rough road did increase the risk and as these were the product of the interruption and deviation it was not material that the conduct of the pedestrians was the cause of the accident rather than these two elements of increased risk. In any case it might be said that the conduct of the pedestrians and its consequences could not be dissociated from darkness and the gravel road as a contributory cause of the accident but that is a question of fact which perhaps it is better to pass over.

1. (1957) S.R. (N.S.W.) 614; 74 W.N. 367. 2. (1957) S.R. (N.S.W.), at p. 618; 74 W.N., at p. 369.

In support of this appeal it was contended that the words "if in the circumstances of the particular case the risk of injury was not materially increased by reason only of such substantial interruption, substantial deviation or other break" were directed to the risk actually encountered and causing the injury for which the claim for compensation is made. It was further contended that the proviso operated to give a ground of compensation unless the only reason for treating the risk as increased was the deviation or interruption.

There are some observations about the proviso which it may be desirable to make for the sake of clearness although they do not directly control the decision in this case. It is important to notice that the proviso is expressed in terms which give a positive right to the worker to receive compensation. The paramount words are "a worker shall be entitled to receive compensation under this paragraph notwithstanding that the injury was received" and so on. Next, it is not without significance that the injury for which he is entitled to receive compensation may have been received during and not only after any substantial interruption or substantial deviation from or other break in the journey. The proviso supposes that there is a break, deviation or interruption in the journey and that it is substantial. Subject to the clause introduced by the word "if", any injury received during the interruption, deviation or break is compensable. So is any injury received after the interruption, deviation or break. Whether the injury must have any further connexion with the journey and what the character of the connexion is may perhaps be a question: cf. Slazengers (Australia) Pty. Ltd. v. Burnett [1] . It is the "if" clause which creates the qualification. The injury cannot be compensable if it occurs during or after the substantial deviation, interruption or other break if there is an increased risk of injury of the kind contemplated by the clause introduced by the word "if". The word "increase" suggests that there must be an increase over a risk otherwise existing. Plainly the risk otherwise existing must be the risks of the journey without substantial interruption, deviation or other break. The word "only" seems to be introduced in no very correct sense. It is difficult to believe that the intention was that if the risk was materially increased by the interruption, deviation or break the injury was to be compensable simply because some additional reason for increasing the risk could be found. What seems to have been intended is that if the substantial interruption, substantial deviation or other break considered alone was enough to cause an increased risk of injury then the substantial interruption, deviation or other break should be fatal to the worker's claim. Of course the mere prolongation of the period of time during which the worker was occupied between the two termini of his journey must in a logical sense cause an increased risk of injury; for it lengthens the time during which injury may occur. But that element is necessarily put out of account.

The more important question, however, is whether the increased risk of injury must itself be the cause of the actual injury suffered. There are no words to justify such an interpretation of the proviso. It is an inference only drawn from the supposed policy of the provision; but there is nothing unreasonable in a policy of treating the substantial interruption &c. as fatal to the right of a worker to claim if the interruption is fraught with the consequence of increased danger even though the actual injury cannot be traced to the particular increase of danger involved. The latter is the policy which the words are apt to express and we are not justified in implying any limitation of their natural meaning. But in any case, on the facts of this case it is impossible to eliminate the darkness as one of the causes of the accident. It was a condition in which it occurred and it would be rather artificial to say that it had nothing to do with the sudden appearance of the pedestrian causing the motor cyclist to strike the bridge and overturn the cycle. Nor is it easy to suppose that the road surface had no influence on the result.

In these circumstances the appeal from the Supreme Court should be dismissed.

The appellants, who were workers employed by the respondent received injuries when a motor cycle driven by one of them, and on which the other was a passenger, collided with a pedestrian and overturned. The accident occurred while the appellants were travelling from their place of employment to their home. They made application for compensation under s. 7 (1) (b) of the Workers' Compensation Act 1926-1954 N.S.W.. Before the accident happened they had made a very considerable interruption of their journey home. It was not made for any purpose connected with their employment, and it was substantial enough to defeat their applications for compensation unless the facts brought them within the concluding paragraph of s. 7 (1) (b). Judge Rainbow decided that the facts did, and made awards for the appellants. He stated a case under s. 37 (4) at the request of the respondent. The questions referred to the Court involve the construction of the last paragraph of the sub-section.

The accident happened after it had become dark. If the interruption of the journey had not occurred the appellants could have made their journey home in daylight. It appears from the stated case that travelling in darkness on the road in question materially increased the risk of injury incidental to travelling on it by day. There were two risks of injury, one due to the bad state of the road, the other to its use by pedestrians. Judge Rainbow found that all three factors, the darkness, the state of the road, and its use by pedestrians contributed to the accident. He took the view that the circumstances fell within the concluding paragraph of the sub-section, because the risk occasioned by darkness was not the only one encountered by the appellants. The other risks, he held, arose from the disrepair of the roadway and its use by pedestrians. The Supreme Court of New South Wales did not agree with that view.

It seems to me that the assumption underlying the final paragraph of s. 7 (1) (b) is that risks may arise which a worker travelling on a journey within the terms of the sub-section would encounter whether or not he interrupted his journey, deviated from it or broke it, to a substantial extent. The earlier provisions of the section make a substantial interruption &c., a ground disentitling the worker to compensation for injury received after resuming the journey. In my opinion the modification of these provisions worked by the last paragraph is that the worker is entitled to compensation if the injury he suffered is not solely attributable to the interruption &c. The facts established the risk of injury to which the appellants were exposed by reason of the state of the road on which the accident happened and its use by pedestrians, was increased only because they made the part of the journey in the course of which they received injury after night-fall. It follows, in my opinion, that the condition expressed in the concluding part of the last paragraph of the sub-section, whereby a worker is entitled to compensation, notwithstanding a substantial interruption &c., was not fulfilled. The appeal, in my opinion, should be dismissed.

These two cases arise out of the same set of facts, and were heard together. In each case the Workers' Compensation Commission (His Honour Judge Rainbow) made an award in favour of a worker of compensation under the Workers' Compensation Act 1926-1954 N.S.W. in respect of injuries sustained by him. In each case the award was set aside by the Supreme Court, and the workers now appeal to this Court. Their injuries did not arise out of or in the course of their employment, but in the course of a journey from their place of employment to their place of abode.

The Act makes special provision for such cases. Section 7 (1) (b) gives to a worker a right to receive compensation from his employer where he has received injury without his serious and wilful misconduct on a journey between his place of abode and his place of employment. It is a condition of this right that "the injury be not received during or after any substantial interruption of, or substantial deviation from, any such journey, made for a reason unconnected with the worker's employment." The condition, however, is subject to a proviso, which reads: "Provided that a worker (and in the case of the death of the worker, his dependants) shall be entitled to receive compensation under this paragraph notwithstanding that the injury was received during or after any substantial interruption of, or substantial deviation from or other break in any journey, if, in the circumstances of the particular case, the risk of injury was not materially increased by reason only of such substantial interruption, substantial deviation or other break."

The place of employment of both appellants on the relevant day was at the factory of Standard Telephones & Cables Ltd. at Moorebank. Tallar was at that time living with the Scobie household, so that their "place of abode" was also the same. On Friday, 23rd April 1954, they ceased work between 4.15 p.m. and 4.30 p.m., and left their place of employment with the ultimate intention of going to their place of abode. Tallar was riding a motor bicycle with Scobie on the pillion seat behind him. They went into the town of Liverpool, where they entered a hotel and had some drinks. They spent about an hour and a half in the hotel. After this they went back past the S.T.C. factory premises, and at a point short of the Scobie home at Minto they turned off the direct road with the object of calling on Tallar's brother. The road on which they then found themselves had a considerably rougher surface than the direct road. Shortly after turning off the direct road the motor cycle came into collision with a pedestrian, and both Scobie and Tallar were seriously injured. Both the visit to Liverpool and the turning off to see Tallar's brother involved deviations from the direct route from place of employment to place of abode, but his Honour Judge Rainbow, found that neither deviation was "sub-stantial" within the meaning of s. 7 (1) (b). If this finding had been challenged, it could probably not have been supported, but this is of little moment, because his Honour also found that the period spent in the hotel constituted a "substantial interruption" within the meaning of the Act, and that the risk of injury was materially increased by this interruption. He said, however, that the appellants' injuries "were not due only to the increased risk which resulted from the said interruption", and the question which he ultimately propounded to himself is thus expressed in the case stated: "Where an injury occurs to a worker on a journey home from work after a substantial interruption and results from three factors (a) darkness (b) nature of road surface and (c) unexpected action of a pedestrian, and factors (a) and (b) flow from the interruption and increase the risk of injury but factor (c) does not so flow, is the respondent entitled to an award?" This question his Honour answered in the affirmative.

This statement of the question appears to me to misconceive the effect of the proviso to s. 7 (1) (b). The determining factor on which the application of the proviso depends is not causation of injury but increase of risk, though I think that in any particular case the relevant risk will be a risk of some such accident as actually happened. I entirely agree with the passage in the judgment of the learned judges of the Supreme Court, in which their Honours say: "The proviso is not concerned with the cause of the injury in fact sustained and whether that injury was or was not due only to a risk arising from the interruption. Indeed it is difficult and perhaps impossible to imagine a case in which the only cause of the injury could be the interruption. What it deals with are the hazards of the journey and whether those hazards have or have not been increased to a material extent by the worker's action in interrupting his normal journey to and from his place of employment". [1] The factor of the behaviour of a pedestrian on the road in the present case was a factor which contributed to the injuries sustained by the appellants, but it was not a relevant "risk-increasing" factor for the purposes of the proviso to s. 7 (1) (b).

1. (1957) S.R. (N.S.W.), at p. 618; 74 W.N., at p. 369.

The difficulty of the proviso arises from the very strange use of the word "only". In what follows I will for simplicity use the single word "deviation" as including all the kinds of departure from a direct and unbroken journey which are mentioned in s. 7 (1) (b). If the proviso is read quite literally, it may be said that, if the factors which increase the risk include matters other than the deviation considered in isolation, the risk "has not been materially increased by reason only of the deviation", and this is the condition on which the worker is exempted from the general disqualification which attaches to deviation. So in the present case it might be argued that there were two, or even three, risk-increasing factors - (1) deviation, (2) the onset of darkness, and perhaps (3) the roughness of the road on which the appellants turned off. It might then be said to follow that the risk of injury was not increased by reason only of deviation, so that the appellants are exempted from the disqualification and are entitled to compensation. But this would lead to a result which is not merely absurd but seems to be exactly the opposite of what the legislature must have intended. For a worker who, in the course of a deviation, increased the risk by taking enough alcohol to impair his faculties (but not enough to make him guilty of serious and wilful misconduct) would be entitled to compensation, and one would think that that was the very kind of case to which the legislature would intend the disqualification to attach. Indeed, if we give to the word "only" the force which the argument gives to it, it is difficult, if not impossible, to conceive a case which the proviso would not exempt from the disqualification. Probably the typical case which one would expect to be outside the proviso is the case where a worker, whose normal route home lies along a good level metalled road, follows, for some purpose of his own, a steep muddy and slippery track, on which his bicycle skids and he is injured. But, according to the supposed argument, this worker is within the proviso, because the risk was increased not only by the deviation as such but (1) by the deviation, and (2) by the nature of the track taken.

The fallacy of the argument lies, as the learned judges of the Supreme Court have pointed out, in a confusion of risk of injury with cause of injury. The proviso is concerned not with cause of injury but with increased risk of injury. Further, it is concerned only with acts of the worker which increase the risk of injury. The deviation is an act of the worker. If the deviation itself (as in the example of the slippery track taken above) increases the risk, the worker, if he is injured, is not entitled to compensation. If it does not, of itself, involve any increased risk, the injured worker is entitled to compensation unless he has (as in the example of consumption of alcohol taken above) increased the risk by some act over and above the actual deviation itself.

I do not think it is possible, reading the language of the proviso grammatically and excluding all implications, to give to the word "only" any sensible effect by means of mere paraphrasis. But I am satisfied that the real meaning of the proviso is that which I have attributed to it above. I think that the draftsman used the word to express shortly a good deal that he was unwisely leaving to implication. The contrast which he intended was not a strictly logical contrast. It was not between "increased by reason only of the deviation" and "increased by reason of the deviation plus some other factor", but between "not increased by reason of the deviation" and "increased by reason of the deviation or some additional act of the worker". The word "only" was intended to exclude, and used illogically to exclude, from the exemption, cases where not the mere fact of deviation but some act of the worker over and above the actual deviation had added materially to the risk of injury.

In the present case, because the deviation or interruption was prolonged into the hours of darkness, it cannot be said that the risk of injury was not increased by reason of the deviation or interruption. Although, therefore, the risk was not increased by any act of the worker over and above the actual deviation or interruption, the case does not fall within the exemption given by the proviso from the general disqualification.

In these cases, the appellants were injured while travelling between their place of employment and their place of abode after a substantial interruption of their journey, so that in claiming workers' compensation under the Workers' Compensation Act 1926-1954 N.S.W. they had perforce to rely upon the proviso to s. 7 (1) (b) of the Act.

To take the simplest operation of s. 7 (1) (b) (and it is that which is material here) it entitles a worker to receive compensation while travelling between his place of abode and his place of employment up to the point of there being: (1) a substantial interruption of the journey or a substantial deviation from the journey, made in either case for a reason unconnected with his employment; or (2) any other break in the journey not reasonably incidental to any such journey. Such an interruption, deviation or other break puts an end to the worker's entitlement to compensation, but it does so subject to the proviso whereby a worker is still entitled to compensation for injury received during or after such interruption, deviation or other break "if, in the circumstances of the particular case, the risk of injury was not materially increased by reason only of such substantial interruption, substantial deviation or other break." The disentitling element is the material increase in the risk of injury which, in the circumstances, is due to the interruption, deviation or break of itself and without more. This is quite different from a provision that the worker should be entitled to compensation unless the interruption, deviation or break caused or contributed materially to the injury and the question which arises under the proviso is: "Did the interruption, deviation or break of and by itself materially increase the risk of injury?"

It was argued, however, that due to the word "only" in the proviso, if in the circumstances of a particular case it could be shown that notwithstanding the increase in risk due to the substantial interruption, deviation or other break, the injury resulted wholly or in part from some other risk of injury to which the worker was subject, the worker would be entitled to compensation; and so, in this case, the worker should not be debarred by reason of the substantial interruption because the injury suffered was due, in part at any rate, to a normal traffic hazard - viz. the sudden emergence of a pedestrian upon the road - which had nothing to do with the risk materially increased by the substantial interruption.

The word "only" does it is true occasion difficulty. It can hardly have been intended that where an interruption, deviation or other break materially increases the risk of injury, a further increase in risk due to some other cause such as riding a motor cycle instead of taking a train, should result in the worker being entitled to compensation. In my opinion, however, appropriate significance is given to the word "only" by requiring that, to defeat the worker's claim for compensation under the proviso, a material increase in risk - as distinct from the injury - be due to the substantial interruption &c. without having to link that interruption with some other source of danger to bring about a material increase in the risk of injury. The emphasis of the proviso is not upon the cause of the injury but upon the increased risk attached to the worker's departure from his normal journey in one of the ways specified and if that, without the necessity for bringing in anything else, increases the risk of injury, he is not entitled under the proviso: the fact that there are also other things which expose the worker to risk of injury is immaterial. I would, for instance, regard injury from tripping upon a kerb on the way home from work as compensable if it occurred after a substantial deviation which did not of itself increase the worker's risk of injury but as not compensable if it occurred after a substantial deviation which did of itself materially increase the risk of injury because, for instance, it meant that the worker had to cross a swollen stream upon slippery stepping stones rather than by a bridge. Therefore, in my opinion, the cause of injury is immaterial; the increase in risk due to the deviation by itself - whether it materialized or not - is alone material.

I would add that a worker whether travelling or during some break in his travelling is always subject to the risk of injury from many causes, and the proviso does not require that overall risk of injury to be divided up into a number of risks each corresponding to a particular cause; what it deals with is the case of the risk of injury being materially increased by one particular cause i.e. a substantial interruption &c. by itself.

I agree with the Full Court that, upon the findings that there was a substantial interruption of the journey and that the risk of injury was materially increased thereby, this application for compensation should have been refused, notwithstanding the further finding that the applicants' injuries were not due only to the increased risk which resulted from that interruption. This last finding is, in my judgment, irrelevant.

The two appellants had made a deviation from the ordinary route between their place of work and their home in order to go into the town of Liverpool. There they had spent about an hour and a half in a public house before starting for their destination. It is unnecessary to decide whether this amounted to a substantial deviation; for clearly it was a substantial interruption of the journey. If they had not lingered drinking in Liverpool their journey would have been made in daylight. It is beyond doubt that travelling on a motor cycle in darkness on an unlighted and bad road on which there may be pedestrians is fraught with more danger than making the same journey in daylight. The delay in the hotel thus materially increased the risk of an accident. The question in the case is the effect in these circumstances of s. 7 (1) (b) of the Workers' Compensation Act 1926-1954, commonly and conveniently known as the journey provision. By it a worker who, without his own serious or wilful misconduct, receives personal injury on his daily journey between his place of abode and place of employment is entitled to compensation under the Act. The risk that some event on the journey may result in the incapacity or death of a worker thus falls on his employer. In the form in which the journey provision was cast in 1926, when it was first introduced in New South Wales, compensation was not payable in respect of an injury received during any substantial interruption or deviation made for a reason unconnected with the worker's employment. In 1929 the Act was amended and the journey provisions entirely omitted. They were restored in 1942 in a new form. An injury received on the journey was made compensable, but not if it was received during or after any substantial interruption or deviation made for a reason unconnected with the employment, or any other break not reasonably incidental to the journey. The policy of this is obvious. A worker who, for his own purposes, interrupted his normal journey or deviated from it thereby changed the nature of the risk which the employer was required by the statute to bear. If he did so, his employer's liability to compensate him for injury on the journey was, therefore, to cease forthwith. In other branches of law also an unjustified voluntary deviation from or delay in the proper course of a journey is a recognized ground for transferring to the person deviating or delaying the incidence of a risk or liability which would otherwise have been borne by another person. Contracts of affreightment provide examples, especially in connexion with excepted perils (e.g. in Stag Line, Ltd. v. Foscolo, Mango & Co. [1] ). And the rules concerning deviations in relation to marine insurances are a close analogy. If an improper deviation is made in the course of a voyage, then the underwriters are not answerable for any loss occurring during the time of the deviation or thereafter. It is immaterial in such cases whether or not the loss be an actual consequence of the deviation. And it is immaterial too that the ship has regained her route before any loss occurs. These principles, which are now in the Marine Insurance Act, go back to the time of Lord Mansfield or earlier (see Elliot v. Wilson [2] , Goram v. Sweeting [3] ). Their essence is that if the assured substitutes a different risk - and that is necessarily the result of a deviation - then the underwriter is discharged. A deviation or delay, prima facie, increases the perils of a journey, because it adds a new place or further time in which danger might arise and loss occur. In particular cases, however, a deviation may actually reduce the risk of loss. But whether or not the period or degree of risk be increased by the deviation is immaterial. The mere fact of deviation, unless for a recognized and permitted purpose, discharges the underwriter (Company of African Merchants v. British and Foreign Marine Insurance Co. [1] ).

1. (1932) A.C. 328. 2. (1776) 4 Bro. P. C. 470 [2 E.R. 320]. 3. (1670) 2 Wms. Saund. 200 [85 E.R. 964]. 4. (1873) L.R. 8 Ex. 154, at pp. 157, 158.

From 1942 until 1951 the stipulations in s. 7 (1) (b) concerning deviations and interruptions operated in much the same way as these rules concerning unjustifiable deviations did in marine insurance. Any substantial deviation or substantial interruption, or other break as described in the paragraph, deprived the worker of the benefits of the Act if he were injured on the journey. Then in 1951 the Act was amended in a way which reflects a new policy. The amendment, which was engrafted on the paragraph as a proviso, was designed to modify the former strict rule that any substantial deviation or interruption or other break would of itself disentitle the worker to compensation. Speaking broadly, it was thereafter to have that effect only if it, of itself, materially increased the risk. This proviso was cast in an involved form; and after it was interpreted by this Court in Selby Shoes (Australia) Pty. Ltd. v. Erickson [1] it was realized that in that form it did not have the result which the legislature had expected. So a new proviso was substituted for it by Act No. 21 of 1953. It is this proviso which we have had to consider in this case. It states that a worker shall be entitled to compensation for an injury received on the journey, notwithstanding that it was received during or after a substantial interruption, or substantial deviation or other break as described, "if in the circumstances of the particular case, the risk of injury was not materially increased by reason only of such substantial interruption, substantial deviation or other break".

This is a seemingly clear, but on analysis somewhat ambiguous, provision. If inverted grammatically, but not in meaning, it becomes, as I read it, equivalent to: "provided that a worker shall not be disentitled to receive compensation because the injury was received during or after any substantial interruption, deviation or other break, unless in the circumstances of the particular case the risk of injury was materially increased by reason of such substantial interruption, deviation or break alone". The result then is that a substantial interruption or substantial deviation, unconnected with the employment, or other break such as is referred to in the Act, made by a worker, will - if it, of itself, materially increases the risk of injury - discharge the employer from his contingent liability. If the employer be so discharged, then it matters no more now than it did before the enactment of the proviso whether or not the interruption, deviation or break had any part in causing the injury which actually occurred. As I have said above, any substantial interruption or deviation must, in one sense, be likely to increase the risk of injury during the journey (including, for this purpose, the time of the interruption and the place of the deviation in the journey). But such an increase would not necessarily be a material increase.

The first question is always, whether there was a substantial interruption, substantial deviation or other break such as the Act contemplates. This is a question of fact. If in fact there was such an interruption, deviation or break, the next question always is, was there, by reason of that interruption, deviation or break alone a material increase in the risk of injury to the worker. That too is a question of fact. An interruption, deviation or break of itself alone materially increases the risk if a material increase in the risk is a necessary consequence of it. If the interruption, deviation or break does not of itself alone - that is, by its own necessary consequences - materially increase the risk, then the risk is not materially increased only by reason of such interruption, deviation or break. But if, in the circumstances, an interruption, deviation or break, having regard to its necessary consequences, materially increased the risk - then it is irrelevant that the risk may have been still further increased by some further factor not necessarily consequential upon the interruption, deviation or other break. If a worker made a deviation which, because of the route he took, was more hazardous than his ordinary route, he might thereby materially increase the degree of risk to which up till the point of deviation he had been subject. If, however, he had, before making such deviation, already materially increased the risk of his journey by an earlier interruption - then the additional risk would be of no consequence, for he would have forfeited his right to compensation before the deviation began. But if the prior interruption had not of itself materially increased the risk, the question would be: did the deviation of itself, in all the circumstances existing when it occurred including those resulting from the prior interruption, materially increase the risk? If it did, the worker would forfeit his right when the deviation began.

The policy of the enactment becomes, I think, evident. A worker is disentitled to compensation if, but only if, a material increase in the hazards of the journey can, in the circumstances existing when the interruption, deviation or break is made, be then predicated as its necessary consequence. The worker by making such an interruption, deviation or break forthwith deprives himself of the benefit of the Act and his employer is discharged from liability. But a worker does not suffer if the interruption, deviation or break would not, without some fortuitous and unforeseeable further occurrence, have materially increased the risk.

The present case, I think, admits of no doubt. The appellants by protracting their stay in the hotel had to travel after dark. And, because night follows day, this was an inevitable consequence of them interrupting their journey for as long as they did. A materially increased risk thus arose by reason of that interruption of itself and without more. They had thus forfeited any right to compensation before they left the hotel, for by then it was apparent that some part of the journey would be attended by a materially increased risk. It seems likely that if they had not been travelling in the darkness the accident in which they were involved would not have occurred. But whether that be so or not is, for reasons given earlier, immaterial. They had disentitled themselves to compensation for any injury, however caused, on that journey. The Supreme Court applied the provisions of s. 7 (1) (b) correctly and the appeal should, I agree, be dismissed.