Scobie v KD Welding Co Pty Ltd

[1959] HCA 65

High Court of Australia|1959-07-01|Before: Windeyer JJ

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Source facts

Court

High Court of Australia

Decision date

1959-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan. Fullagar, Menzies and Windeyer JJ. Scobie v KD Welding Co Pty Ltd [1959] HCA 65

[2]

ORDER Scobie v. K. D. Welding Company Proprietary Limited. Appeal dismissed with costs. Tallar v. K. D. Welding Company Proprietary Limited. Appeal dismissed with costs.

[3]

These are two appeals which we heard together because they arose out of the same facts and are governed by the same considerations. The appellants were injured in one accident. They were respectively the rider and the pillion rider upon a motor cycle. The accident gave rise to claims for workers' compensation against the respondent company by which they were both employed. The accident occurred on 23rd April 1954 in Fields Road, Ingleburn. They were both riding home from work when the motor cycle collided with a pedestrian. In consequence of the collision they were thrown upon the roadway and injured. The claims of the two men were of course based upon the provisions contained in s. 7 (1) (b) of the Workers' Compensation Act 1926-1954 N.S.W.. The material parts of that paragraph provide that where a worker has received an injury without his serious and wilful misconduct on any of the daily or other periodic journeys defined in the same sub-section or certain other journeys and the injury be not received during or after any substantial interruption of or substantial deviation from any such journey (apart from specified exceptions), or during or after any other break in any such journey which the (Workers' Compensation) Commission deems not to have been reasonably incidental to the journey, the worker shall receive compensation from the employer in accordance with the Act. It will be noticed that this provision implies that an interruption or deviation, if it be not substantial, is no ground for denying that the worker received the injury on the journey; further, it implies that if the injury be received during the interruption or deviation which is not substantial the injury is still received on the journey. The daily or other periodic journeys are defined amongst other things to include journeys between the worker's place of abode and place of employment.

[6]

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."

[10]

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.

[18]

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.

[21]

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.

[31]

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] ).