Walker v Wilson

(3) the matter be remitted to the Workers' Compensation Board of Western Australia for further determination according to law.

Section 19(1)(a) of the Workers' Compensation and Assistance Act 1981 W.A. deems a worker who suffers a personal injury in the circumstances therein set out "to have suffered personal injury by accident arising out of or in the course of his employment" and, on that account, to be entitled to compensation under the Act: s. 18 and the definitions of worker and disability in s. 5. Paragraph (a) of s. 19(1) relates to injuries suffered while travelling on the journeys therein specified. Its operation is not restricted to injuries suffered while travelling on a journey where the travel is or is in the course of the employment. The journeys to which par. (a) relates are described by reference to their termini. Sub-paragraph (i) relates to journeys between the worker's "place of residence and place of employment"; sub-par. (ii) is presently immaterial; sub-par. (iii) relates to journeys between the worker's camp or place of temporary residence and his place of residence when not in temporary residence. The first question that arises on this appeal is whether, in the circumstances described in the majority judgment, the appellant's parents' home in Perth is properly to be described as his "place of residence" for the purposes of sub-par. (i) or his "place of residence when not so temporarily residing" for the purposes of sub-par. (iii).

The "place of residence" mentioned in sub-par. (i) must include indifferently a permanent or a temporary place of residence, else some of a worker's "regular, daily, or periodic journey[s]" to and from the place of employment would not be covered, and that is an unlikely construction of the Act. However, whether the worker's place of residence be temporary or permanent, for the purposes of sub-par. (i) it must be a place in which the worker resides while he is going to or from his place of employment, including the occasion when, on termination of his employment, he is returning to his then place of residence: Commonwealth Aircraft Corporation Pty. Ltd. v. Hunt [1] . But sub-par. (i) does not contemplate a journey between a place of employment to one of the places of residence mentioned in sub-par. (iii) and thence to the other of those places of residence: the latter leg of such a journey is expressly covered by sub-par. (iii). It follows that sub-par. (i) relates to a journey between the place of employment and the place where, at the time of the journey, the worker is residing whether that place of residence be temporary or permanent. In the present case, the appellant's place of residence for the purpose of sub-par. (i) was the respondent's home: that is where he was required or expected by the respondent to reside during his employment and where he was in fact residing when the employment was terminated. During his employment, he was not residing in Perth.

Sub-paragraph (iii) relates to a journey which was reasonable for the worker to take -

between any camp or place, where the worker is required by the terms of his employment, or is expected by his employer, to reside temporarily or where it is reasonably necessary or convenient that he shall temporarily reside for any purpose of his employment, and the worker's place of residence when not so temporarily residing, if the journey is undertaken in accordance with the terms and conditions of his employment. The worker may reside in a temporary place of residence either because the employer requires or expects him to live there or because the temporary place is reasonably necessary or convenient "for any purpose of his employment". A temporary place of residence may thus sometimes be a place selected by the employer, sometimes selected by the worker. Clearly enough, the phrase "any purpose of employment" includes the purpose of engaging in the employment so that, if the sub-paragraph ended with the words "when not so temporarily residing", a place in which the worker resided for the whole period of the employment might be regarded as a place in which the worker is residing temporarily, and, as a correlative, the place where he ordinarily resides under his general living arrangements might be regarded as his "place of residence when not so temporarily residing". Much depends on the nature and expected duration of the employment. In the present case, as the appellant's employment as a jockey in Wickham was only for the period of the racing season, the respondent's home in Wickham should be regarded as the appellant's place of temporary residence and the appellant's parents' home in Perth should be regarded as his place of permanent residence. Indeed, the fact that the appellant was billeted in the respondent's home indicates that that home was only temporary. But that does not determine the matter.

The concluding clause of sub-par. (iii), which qualifies journeys between any place of temporary residence and any place of permanent residence, is that the journey be "undertaken in accordance with the terms and conditions of his employment". The meaning of this qualification is not easy to ascertain. If the qualification is taken to mean merely that the undertaking of the journey is consistent with the terms and conditions of the employment, the qualification is arguably otiose. Having regard to the way in which the places of temporary employment are defined, it would seem to be necessarily consistent with the terms and conditions of employment that a worker should undertake journeys between his place of permanent residence and a place where he is required or expected to live temporarily or where it is reasonably necessary or convenient that he live temporarily for a purpose of his employment. Alternatively, the qualification could be construed to mean that the undertaking of the journey is in fulfilment of an obligation contained in the terms and conditions of employment or in exercise of a right thereby conferred. So construed, the mode and occasion of transport on the journey would be governed by the terms and conditions of employment: under the terms and conditions of some employments, transport might be provided by the employer; under the terms and conditions of other employments, it might be the responsibility of the worker to provide his own transport. So construed, the qualification would exclude journeys which the worker undertakes on his own initiative albeit the purpose of the journey is to go to or from his place of temporary residence. However, the former construction of the qualification seems to conform better with the policy of the Act and to attribute to its terms a construction which is more favourable to the worker (as to which, see Wilson v. Wilson's Tile Works Pty. Ltd. [2] ).

The policy of the Act is to provide cover not only for the worker who is injured in the course of his employment but also for the worker who is injured in the course of a journey between his home and his work: cf. Hume Steel Ltd. v. Peart [3] . Where a temporary place of residence is adopted for a purpose of employment, sub-par. (i) stops short of extending cover to journeys between the place of employment and the permanent place of residence. This shortfall in cover, which sub-par. (iii) makes up, is of great importance when the worker is employed in places of employment that are remote from his permanent place of residence, occasioning the adoption of a temporary (and equally remote) place of residence. Journeys between his permanent place of residence and his temporary place of residence are not different in kind from the journeys covered by sub-par. (i): in both cases the worker undertakes the journey in order to be available to discharge the duties of his employment, but in the case of journeys under sub-par. (iii) it would be inappropriate to furnish cover to a worker who, by undertaking a journey to his permanent place of residence, prejudices his ability to attend at his place of employment when required there to perform the duties of his employment. The qualification will exclude cover for such a journey if the phrase "in accordance with" be construed as "not inconsistently with" the terms and conditions of the worker's employment. Attributing this operation to the qualification, it is not otiose. I would construe it accordingly.

So construed, sub-par. (iii) covers the journey from Wickham to Perth on which the appellant suffered his personal injury.

Two further questions remain. First, has the appellant established "to the satisfaction of the Board" that it "was reasonable in the circumstances" to undertake the journey to Perth? The Board was not satisfied that the journey from Wickham to Perth was reasonable for the appellant to take in all the circumstances. The Board seems to have regarded reasonableness as a function of the duties of employment or, at all events, dependent on some connection between the journey and the employment. If that be so, the Board's view was infected by legal error. The same error appears to have infected the affirmation of the Board's finding by the Full Court. Although the findings of the courts below are concurrent on the issue of reasonableness, the concurrent findings seem to have been - indeed, must have been - the product of a misconception of what is required to make the undertaking of the journey reasonable. The appellant was going home after his employer had dismissed him; there was no reason for him to remain in Wickham. If I may respectfully say so, it is patently wrong to regard the facts as capable of supporting the view that the undertaking of the journey was not reasonable. To the contrary, the facts established beyond doubt the reasonableness of the appellant's journey. There was no obstacle to the correction of this finding on appeal to the Full Court: see ss. 136, 137. The error should now be corrected.

Second, was the appellant's preparation for the journey, which occupied a day spent in Wickham collecting some money he was owed and having his car repaired and fuelled, a "substantial interruption" of his journey between the respondent's home in Wickham and his parents' home in Perth? If so, the injury which he "incurred after [the] substantial interruption" is not compensable: s. 19(1). A " "substantial interruption" prima facie includes any interruption of the journey for a period of more than one hour": s. 19(5)(c). In my opinion, substantiality is to be assessed by reference to the circumstances of each case which include not only the terms and conditions of a worker's employment but also the exigencies of the journey and the personal circumstances of the worker. The time spent by the appellant in preparation for the approximately 1,500 km. journey to Perth, immediately after his peremptory dismissal, was not so much an interruption as time necessarily spent in the undertaking of the journey. If that time is to be treated as an interruption at all, it cannot be described as substantial when regard is had to the magnitude of the journey then to be undertaken.

It follows that the appellant was entitled to an award of compensation and the appeal should be allowed.

The appellant was, at relevant times, a young unmarried jockey. He sustained serious injuries in a car accident while travelling between the small Western Australian town of Wickham, where he had temporarily worked for the respondent, and Perth. He instituted proceedings against the respondent claiming compensation pursuant to the provisions of the Workers' Compensation and Assistance Act 1981 W.A. ("the Act"). His claim came before a Supplementary Workers' Compensation Board ("the Board") which found in favour of the respondent. The appellant appealed to the Full Court of the Supreme Court of Western Australia which, by majority (Brinsden and Pidgeon JJ., Rowland J. dissenting), dismissed the appeal. He now appeals to this Court from the judgment and order of the Full Court. While the case raises questions of some general importance about the scope of s. 19 of the Act, it ultimately turns upon its own particular facts. It is necessary to identify those facts in some detail.

In early 1985, the appellant was living with his parents in their home in Perth. In a number of telephone conversations between the appellant and the respondent, who was a horse trainer who resided and trained his horses in Wickham, the appellant and the respondent entered into an agreement to the effect that the appellant would go to Wickham to ride for the respondent during the coming 1985 North West Jockey Club racing season which was scheduled to last for approximately four months, commencing in late May or early June. Under the agreement, the appellant was entitled to receive a weekly payment from the respondent ($100 according to the appellant; $50 according to the respondent) and was entitled to free board and lodging in the respondent's Wickham home. It was agreed that the appellant would go to Wickham, which is about 1,500 km. from Perth, some weeks before the commencement of the racing season and assist in the pre-season training of the respondent's horses. It was also agreed that, when the racing season commenced, the appellant would be free to accept rides for other trainers in races in which he was not required to ride one of the respondent's horses. The appellant was to be paid a fee by the respondent for winning rides and would be entitled to retain riding fees received from the racing authorities and from persons other than the respondent for outside rides. The Board found that, apart from the above matters, it was unable to determine the content of the contractual arrangements made between the appellant and the respondent. In particular, the Board made no express finding of any arrangement between the appellant and the respondent in relation to the appellant's return to Perth at the end of the racing season or on the earlier termination of his arrangement with the respondent.

In due course, the appellant drove to Wickham in his car. The journey took some nineteen hours. He commenced his duties with the respondent on or about 15 April 1985. From the time of his arrival, the appellant stayed with the respondent and his wife in their home which was on the outskirts of the town. He did work around the stables, which were about two kilometres from the house, and assisted in the pre-season preparation of the respondent's horses.

After the 1985 racing season began, the respondent became dissatisfied with the appellant's riding performances. Matters came to a head on Saturday, 22 June, when one of the respondent's horses, in a race which the respondent expected it to win, left the barrier stalls without the appellant. Shortly after lunch on the following day (Sunday), the respondent informed the appellant that his services were terminated and suggested that the best thing for the appellant to do was to return to Perth. It is convenient to set out the Board's findings about what then occurred:

After having been sacked the applicant packed his things and drove into Wickham and stayed that night with a friend, Mr. Terry McDermott, ostensibly because he had insufficient funds to finance his return to Perth without the collection of a debt owed to him by a Mr. Staker to whom he had lent some money shortly before that time.

On the morning of Monday 24 June 1985 the applicant contacted Staker who agreed to repay the money but the funds did not become available until the early afternoon and having collected those funds the applicant had some very minor repairs done to his car for the journey to Perth, filled it with petrol and left Wickham along the North West Coastal Highway late in the afternoon of that day. Late in the evening at a spot approximately 8 kilometres south of Nanutarra on the North West Coastal Highway the applicant's car was involved in an accident Mr. McDermott was a passenger in the car but he was not called to give evidence. The applicant was rendered unconscious by the accident and it is understandable that his recollection of the journey and events leading up to the accident are less than perfectly clear. In some respects his evidence in that regard is obviously incorrect but that detail does not seem to effect [sic] the outcome of this case.

As a result of the injuries which the appellant sustained in the accident, he is now a tetraplegic.

If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1. By s. 5, "disability" is defined as including, in the absence of a contrary intention:

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions.

Subject to any contrary intention and to presently irrelevant exceptions, "worker" is defined (by s. 5) as meaning: any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing.

It is not disputed that, for so long as their contractual arrangements subsisted, the relationship between the appellant and the respondent was, for the purposes of the Act, that of "worker" and "employer". On the other hand, it is not suggested that the appellant's injuries arose "out of or in the course of [his] employment" within the ordinary meaning of those words. It is common ground that the appellant's injuries constituted a "disability" entitling him to compensation under the Act if and only if he is "deemed" to have suffered them "by accident arising out of or in the course of his employment" by reason of the provisions of s. 19(1)(a)(i) or s. 19(1)(a)(iii) of the Act. For present purposes, s. 19(1) provides:

Without limiting the generality of section 18, a worker is deemed to have suffered personal injury by accident arising out of or in the course of his employment where -

(a) the worker suffers a personal injury without any substantial default or wilful act, on his part, while he is travelling on any regular, daily, or periodic journey, or on any other journey which the worker establishes to the satisfaction of the Board was reasonable in the circumstances for the worker to take -

(i) between his place of residence and place of employment;

(iii) between any camp or place, where the worker is required by the terms of his employment, or is expected by his employer, to reside temporarily or where it is reasonably necessary or convenient that he shall temporarily reside for any purpose of his employment, and the worker's place of residence when not so temporarily residing, if the journey is undertaken in accordance with the terms and conditions of his employment;

(b) the injury arises out of, and in the course of, the journey,

unless the injury is incurred during, or after, any substantial interruption of, or substantial deviation from, the journey, made for any reason unconnected with his employment Section 19(5)(c) provides that, for the purposes of s. 19: "substantial interruption" prima facie includes any interruption of the journey for a period of more than one hour.

The "somewhat compressed" provisions of s. 19 of the Act are intended to operate in a wide variety of circumstances (cf. Whiting v. Brambles Industries Ltd. [4] ). They should be construed and applied "liberally and practically" in a way which will promote the underlying legislative purpose and object (cf. Danvers v. Commissioner for Railways (N.S.W.) [5] ; Interpretation Act 1984 W.A., s. 18). In particular, the phrases "place of residence" and "place of employment" and the word "place" occurring in sub-pars. (i) or (iii) of s. 19(1)(a) should be treated as having a sufficiently flexible content to permit their practical application to the varying sets of circumstances in which the sub-paragraph was intended to operate. Thus, for example, circumstances might exist in which a worker had two different places of residence at comparable distances from his place of work. In such a case, sub-par. (i) should not be construed as requiring the identification of a single place of residence in the abstract. If the worker was injured in the course of an ordinary journey between his place of employment and either of those two places of residence, that place of residence should be accepted as being the relevant place of residence for the purposes of determining whether the requirements of the sub-paragraph were satisfied in relation to the particular journey: see, generally, Wade v. H. J. Heinz Co. [6] .

1. (1976) 134 C.L.R. 464, at p. 468. 2. (1969) 122 C.L.R. 529, at p. 536. 3. [1982] V.R. 479, at pp. 482-483.

It has long been accepted that workers' compensation provisions of the kind found in s. 19 are applicable to a worker travelling from the workplace after having "knocked off for good" as well as to the worker who has "knocked off for the day": see Commonwealth Aircraft Corporation Pty. Ltd. v. Hunt [7] ; Gray v. Kirchubel [8] . The basis of that construction of such provisions is not that the period of employment of the worker is notionally extended (but note the contrary suggestion in Carbis v. Bounceball Pty. Ltd. [9] ). It is that the scope of what arises out of or falls within the course of employment for the purposes of the particular legislation is expanded to include matters which might not otherwise be understood as arising out of or falling within the scope of employment, including certain matters occurring after the formal termination of the employment. Accordingly, if the appellant's injuries were sustained in any of the different sets of circumstances described in par. (a) of s. 19(1), the appellant will be deemed to have suffered them by accident arising out of or in the course of his former employment.

1. (1946) 46 S.R. (N.S.W.) 240, at p. 242. 2. (1948) 2 W.C.B.D. (Vict.) 116, at p. 118. 3. [1972] V.R. 211, at p. 217.

Sub-paragraph (i) of s. 19(1)(a) is primarily concerned with injury sustained by a worker in the course of a journey between his place of work and his "place of residence". The two will commonly be in the same general locality or region. In that context, "place of residence" prima facie refers to the particular building or other shelter in which the worker is currently residing, be it temporary or otherwise. On the other hand, sub-par. (iii) provides for the case where a worker travels between his ordinary "place of residence" and some other "camp or place" to or from where he is required by the terms of his employment or expected by his employer to reside temporarily or where it is reasonably necessary or convenient that he shall temporarily reside for the purposes of his employment. Obviously, such a journey could take place before the worker has obtained a particular temporary residence. It could also take place after the worker has abandoned the temporary residence and is returning to his ordinary home. In its context in sub-par. (iii), the reference to a "place, where the worker is required to reside temporarily" should be construed as being capable of denoting, in appropriate circumstances, a general geographical area, such as a particular town, as distinct from a particular identified building or other shelter within that area.

In the present case, the agreement between the appellant and the respondent was, as has been mentioned, made in telephone conversations between the appellant in Perth and the respondent in Wickham. The work to be performed by the appellant was in and around Wickham. It was plainly an implied term of the contract that the appellant would travel to Wickham and temporarily reside in the Wickham area in preparation for and during the approaching racing season. While the Board made no express finding in that regard, the inference from the evidence was plain and unavoidable that it was in the contemplation of the parties that, at the end of the racing season when the contractual arrangements between the appellant and the respondent would come to an end, the appellant would leave Wickham and return to Perth.

The appellant's primary submission was that the case fell within sub-par. (iii). The first question to which that submission gives rise is whether one can identify any "place" where the appellant was required by the terms of his employment or expected by his employer to reside temporarily or where it was reasonably necessary or convenient that he should temporarily reside for any purpose of his employment. The answer to that question seems to us to be in the affirmative. Plainly enough, the appellant was "required by the terms of his employment" and "expected by his employer" to reside where it was "reasonably necessary" and "convenient" that he reside during the period of his temporary employment by the respondent. It is arguable that the relevant "place" should be seen as the respondent's home where the appellant in fact resided. It would, however, seem from the evidence that, while the appellant was entitled to free board and lodging in the respondent's home, there was no contractual requirement or necessity that he live or continue to live in that particular building. All that the employment contract and the demands of the employment required was that the appellant reside, during the period of his employment, within Wickham or its environs. In the context of the facts of the case, the preferable view is that the Wickham locality as a geographical area constituted the relevant "place" for the purposes of sub-par. (iii). As will be seen, however, the outcome of the appeal would be the same if the respondent's home in Wickham were regarded as that "place".

The next question is whether the house of the appellant's parents in Perth was, in the circumstances of the case, the appellant's "place of residence when not so temporarily residing" for the purposes of sub-par. (iii). In our view, it was. It was the appellant's home at the time when he left to reside temporarily in Wickham for the purposes of his employment by the respondent. The unchallenged evidence was that he intended to return to it when his temporary employment in Wickham came to an end. It was in the course of so returning that he sustained his injuries.

It follows that the appellant's injuries were sustained by him while he was travelling on a journey between a "place" of the kind specified in sub-par. (iii) and his "place of residence" for the purposes of that sub-paragraph (i.e. "when not so temporarily residing"). There remain, however, three further questions which must be answered favourably to the appellant before a conclusion could be reached that his injuries are to be "deemed" to have been sustained "by accident arising out of or in the course of his employment" pursuant to the provisions of that sub-paragraph.

The first of those remaining questions relates to the requirement of the introductory words of s. 19(1)(a) that "the worker establishes to the satisfaction of the Board" that the relevant journey "was reasonable in the circumstances for the worker to take". While there is no specific finding of the Board on that aspect of the matter, it is clear that the Board could not properly fail to have been satisfied that it was reasonable, in the circumstances, for the appellant to have taken the journey from Wickham to Perth in order to return to his family home in Perth when his employment with the respondent was peremptorily terminated. Indeed, the respondent's own evidence in chief was, not surprisingly, to the effect that he had suggested that the appellant do precisely that.

The second further question is whether the requirement of sub-par. (iii) that "the journey [be] undertaken in accordance with the terms and conditions of [the appellant's] employment" was also satisfied. The answer to that question turns upon the construction of the relevant words of the statutory provision. If those words are construed as meaning that the worker was required to make the journey by the specific terms of the employment contract or by some other binding contractual obligation (such as an express directive which the employer was entitled to give), the requirement which they impose was not satisfied since it is not suggested that there was any such specific contractual term or binding contractual obligation.

In our view, however, the reference in sub-par. (iii) to a journey being "undertaken in accordance with the terms and conditions of [the worker's] employment" should not be construed as requiring that the relevant journey was one which the worker was contractually bound to take. In the context of the particular circumstances to which sub-par. (iii) is confined, that is to say a case where a worker has been " required " by his employer or by the demands of his work to reside temporarily or in a particular place, it would be arbitrary and unfair to construe the requirement that the journey be "in accordance with the terms and conditions of his employment" in a way which would exclude a return journey which was in the contemplation of both employer and worker at the time the worker went to the temporary location, which was made with the consent of the employer and which was consistent with the terms and conditions of the employment. In the context of sub-par. (iii), the words "in accordance with" should be construed as meaning "in conformity with" or "consistently with". That being so, the journey from Wickham to Perth which the appellant took when his temporary residence in Wickham was no longer required by his employment was "in accordance with" the terms and conditions of that employment for the purposes of sub-par. (iii).

The third further question is whether the appellant's delay in setting out from Wickham to Perth disentitled him to relief pursuant to s. 19(1)(a)(iii). Again, in our view, that question must be answered favourably to the appellant.

No doubt, there could be circumstances in which delay of a dismissed employee in setting out on a journey which otherwise satisfied the requirements of s. 19(1)(a)(iii) would take the case out of the operation of that sub-paragraph. It is unnecessary to determine whether, in such a case, the delay should be seen as breaking the nexus between the journey and the previous employment to an extent that the journey could no longer be seen as coming within sub-par. (iii) or whether the delay constitutes a "substantial interruption of", or "substantial deviation from", the journey within the meaning of those words in s. 19(1). It suffices to say that no such delay occurred in the present case where what was involved was a journey of approximately 1,500 km. which had taken the appellant some nineteen hours to complete when travelling in the opposite direction. In a context where the need to take the journey had arisen unexpectedly upon the respondent's peremptory termination of the appellant's employment, the delay of a day involved in obtaining the necessary funds and having necessary repairs effected to his vehicle could not properly be seen either as divorcing the journey from the employment or as constituting a "substantial interruption" or "substantial deviation" for the purposes of the concluding words of s. 19(1). True it is that s. 19(5) provides that "any interruption of the journey" for more than one hour "prima facie" constitutes a "substantial interruption". As the inclusion of the phrase "prima facie" makes clear, however, what constitutes a "substantial interruption" must be determined by reference to all the relevant circumstances. In the context of sub-par. (iii), a preliminary delay which involved no more than what was reasonably necessary for adequate preparation for the particular journey cannot properly be seen as constituting a "substantial interruption" or "substantial deviation" even if it be assumed that such a preliminary delay is an "interruption" to which the presumption embodied in s. 19(5)(c) is applicable. We would add that, even if we had been of the view that the "place" of temporary residence for the purposes of s. 19(1)(a)(iii) was the respondent's home as distinct from the Wickham area, we would nonetheless have concluded that the interruption or deviation caused by the need to make necessary preparations to continue the journey from the respondent's home to Perth did not, in all the circumstances, constitute a "substantial" interruption or deviation for the purposes of that sub-paragraph.

It follows that the provisions of s. 19(1)(a)(iii) operate in the circumstances of the present case to deem the appellant's injuries to have been suffered by accident arising out of or in the course of his former employment by the respondent. That being so, the appellant was entitled to compensation pursuant to the provisions of the Act. It is unnecessary to decide whether the case also falls within sub-par. (i) of s. 19(1)(a). As has been said, however, that sub-paragraph would seem to be primarily concerned with injury sustained while on a journey of a more routine kind to or from the place of employment.

The appeal should be allowed and the order of the Full Court of the Supreme Court of Western Australia set aside. In lieu thereof, it should be ordered that the appeal to that court be allowed with costs, that the judgment of the Board be set aside and that the matter be remitted to the Board for further determination according to law.