Weston v Great Boulder Gold Mines Ltd

[13]

I reject the first argument because I do not think that the decision of the House of Lords in Kelly's Case [2] , that injury by deliberate assault was injury by accident, depended upon some conclusion that the nature of Kelly's employment as a school teacher carried with it a special risk of assault from his pupils. As I read the judgment of the majority of the House of Lords, the conclusion upon the question whether or not Kelly's death was injury by accident would have been the same had he been killed by somebody entirely unconnected with the school. Thus Viscount Haldane L.C. said: "My Lords, if the object of this statute be as wide as I gather from the study of its language, its construction must, as it appears to me, be that accident includes any injury which is not expected or designed by the workman himself. If so the Court of Appeal in England was right in its decision in Nisbet v. Rayne [3] that the definition extended to a case of death by murder, and the Court of Appeal in Ireland was right in Anderson v. Balfour [1] , and in the present case, in taking a similar view of the meaning of "accident". To take a different view appears to me to amount, in the language of Mathew L.J. in Challis v. London and South Western Railway Co. [2] , to the reading into the Act of a proviso that an accident is not to be deemed within it if it arises from the mischievous act of a person not in the service of the employer" [3] . Lord Shaw said: "When, over and over again, it is announced that the words of the Workmen's Compensation Act must be construed according to their ordinary and popular signification, I entirely agree; but I think it is surely part of that popular and ordinary signification that for seventy years in England the word "accident" has been publicly and descriptively used as inclusive of occurrences intentionally caused" [4] . Lord Reading said: "Construing the words in their ordinary and popular sense, I think they mean an injury caused to the workman by some sudden and unexpected occurrence, whether the injury was inflicted by design or otherwise, as distinguished from an injury caused to him by some gradual process" [5] .

[22]

The phrase "by accident arising out of and in the course of employment" was in the continuing process of judicial interpretation analysed into its subordinate elements, "arising out of", "arising in the course of", "accident" and "employment". There is no need now to survey the decisions which exemplify this interpretation by fragmentation. In 1931 Viscount Dunedin said that it had then become beyond controversy that an applicant for compensation must make out as separate matters that there was an accident, that it arose out of his employment, and that it arose in the course of his employment: see Simpson v. London, Midland and Scottish Railway Co. [1] . Decisions refusing compensation to workers who had failed to surmount one or other of the several obstacles created by words thus dissociated and considered separately led to the Australian States amending their statutes to remove the impediments that the courts had revealed. They did this in various ways, with the result that the words in which a compensable injury is described are not now the same in every State. The main amendment has been an elimination of the requirement that to be compensable the injury must arise both out of and in the course of the employment: these have been made alternatives by the substitution of "or" for "and". Some States have gone further and removed the word "accident". The statute with which we are here concerned is the Workers' Compensation Act, 1912-1961 of Western Australia. The relevant provision makes compensation payable "if in any employment personal injury by accident arising out of or in the course of the employment is caused to a worker". The result is that instead of a single phrase bringing within the Act an accident of the kind it described - each component of the composite description taking some colour from its context - there are now two descriptions, of quite different kinds of accidents each of which is brought within the Act, the description of one taking no colour from that of the other except by contrast.

[23]

The question referred to the Supreme Court by the Workers' Compensation Board proceeds on the assumption that one first enquires whether there was an accident; and secondly if there were, whether it answered either description - out of or in the course of the employment. As I have said, this way of approaching the matter has the sanction now of authority, although all the decisions are not easily reconcilable and all do not seem to follow the same path. In this case the answer to the first question posed in that way must, I think, be Yes. Notwithstanding the powerful dissents of Lord Dunedin, Lord Atkinson and Lord Parker of Waddington, the decision of the House of Lords in Trim Joint District School Board of Management v. Kelly [1] seems to me to compel that answer. Admittedly the event was not of a kind that one would ordinarily expect might occur in the employment in which the appellant was engaged. Such a happening was not one of the ordinary hazards of that employment. Therefore, if the Western Australian Act still spoke of an accident arising out of and in the course of employment, it may well be that the employer would not be liable for the consequences of the accident in this case. But as the law now stands he is liable if the accident arose in the course of the employment. And that requirement, separately regarded, was I think satisfied here. In Kavanagh's Case [2] I gave my reasons for thinking that a happening that would have befallen a man as it did and when it did wherever he was and whatever he was doing at the time - for example the onset or climax of an illness, the unexpected result of the shock of bad news - does not occur in the course of his employment merely because when it strikes him he is at work. I did not think that the expression "in the course of employment" could mean simply "while at work". So to read it in workers' compensation law would I thought be to give it a meaning that was inconsistent with the meaning that it, and similar expressions such as "in the course of business", had had in the law long before the system of workers' compensation began; and it would, I thought, divert workers' compensation law far from its purpose. I find it hard to rid myself of the opinion that I held and there expressed. But it is not that which the majority of this Court there held. As I understand their judgments, anything at all that happens to a man while he is at work happens in the course of his employment; and if it happens unexpectedly it is an accident in the course of the employment. That is enough to dispose of this case. I should however add that, even adhering to the view I had, I would still think that according to earlier decisions what happened to the appellant here must be taken to have happened in the course of his employment. This is not a case where the incident that occurred would have happened as it did and when it did without the aid of any circumstance of the employment or the place of employment. Of course he might have been assaulted in some other way at some other time and place. But that would have been a different accident. The assault as actually made upon him, the accident that in fact caused the injury, was made possible because his employment had taken him into the mine.

[28]

Section 7 (1) of the Workers' Compensation Act of Western Australia provides that compensation shall be paid "if in any employment personal injury by accident arising out of or in the course of the employment is caused to a worker". In the form in which the provision was originally enacted, compensation was payable in respect of personal injury by accident arising out of and in the course of the worker's employment and as the law then stood, a worker who had suffered personal injury by accident was required to establish not only that it had arisen "out of" his employment but also that it had arisen "in the course of" that employment. The effect of the substitution of the word "or" for "and" was discussed by this Court in Kavanagh v. The Commonwealth [1] . Dixon C.J. pointed out that in Pearson's Case [2] the Court had said that the condition that the injury should arise "in the course of" the employment was "satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service" [3] ; and, on the following page, his Honour went on, "It is possible that those who substituted "or" for "and" were not alive to the consequences of the change and in particular to the manner in which the alternative "or in the course of the employment" might operate to compensate sufferers from injuries unconnected with industry if and only if the injuries occurred during working hours" [4] . Fullagar J. said: "But what does emerge from a consideration of the cases" (that is to say of the cases decided at a time when the word "and" and not "or" appeared) "is, I think, the significant fact that the effect of requiring a causal connexion between employment and injury is always attributed to the words "out of" and not to the words "in the course of". (The words "out of" do indeed import causation: the words "in the course of" do not.) The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment. And it necessarily follows, I think, that the words "arising in the course of his employment" ought not to be regarded as meaning anything more or less than "arising while the worker is engaged in his employment" " [1] . Menzies J. said: " it is abundantly clear that in the composite phrase" (that is to say before the word "or" was substituted for "and") "the words "in the course of" were regarded as signifying no more than that the worker must be doing something that was part of or incidental to his service. This being so, it seems to me that when the conjunctive was dropped for the disjunctive, the result was to entitle the worker to compensation if no more is shown than that the personal injury by accident arose while he was doing something that was part of or incidental to his service" [2] . More recently what was said in Kavanagh's Case [3] was applied in The Commonwealth v. Oliver [4] , although in that case there was a difference of opinion whether the worker, at the time when he received his injury, was engaged in an activity incidental to his employment.

[31]

There remains the question whether the appellant suffered "personal injury by accident" having regard to the fact that his injuries were intentionally inflicted upon him by his assailant. In Fenton v. J. Thorley & Co. Ltd. [1] , a case under the English Workmen's Compensation Act, 1897, Lord Macnaghten defined the word "accident", as used in the Act, to mean "an unlooked-for mishap or an untoward event which is not expected or designed" and that definition has since been accepted and applied in England (see for example Clover, Clayton & Co. Ltd. v. Hughes [2] and in Australia in McGuire v. Union Steamship Co. of New Zealand [3] . It left open, however, the question whether an injury resulting from an event not expected or designed by the person injured but done deliberately by another for the purpose of causing injury could properly be described as a personal injury by accident. The answer to that question was finally settled in Trim Joint District School Board of Management v. Kelly [4] in which the majority of the House of Lords held that "not expected or designed" meant "not expected or designed by the workman himself". Decisions to the same effect had been given earlier, for example, in Challis v. London and South Western Railway Co. [5] where an engine driver, whilst driving a train, was injured by a stone wilfully dropped from an overhead bridge, and in Nisbet v. Rayne [6] , where a cashier carrying money to pay his employer's workmen was robbed and murdered. In each case it was held that there had been "personal injury by accident". The same view was taken by this Court in McGuire's Case [3] . Isaacs and Rich JJ. said: "the workman's status is the governing standpoint" [7] , and Gavan Duffy and Starke JJ. put it more plainly: " "Unexpected" means unexpected by the person suffering the injury, not by the person inflicting it" [8] . In the present case Wolff C.J. considered that in what he called the "assault cases", the worker's claim could succeed "only where the particular type of employment was such as to involve the risk of assault, or where the assault might be said to result from some argument or altercation with a fellow worker in relation to the worker's job". He instanced the case of a bank teller injured by a robber, or a worker assaulted by his foreman who was remonstrating about the former's work. The learned Chief Justice no doubt based his opinion upon passages to be found in the speech of Earl Loreburn in Trim's Case [4] which undoubtedly afford support for that proposition. But, with great respect, it is difficult to see how the fact that the type of employment in which the worker is engaged is one which is accompanied by the risk of being assaulted or otherwise intentionally injured by another can be relevant in considering whether there has been an "injury by accident". Rather would one think that the greater the risk of such a happening in a particular kind of employment, the more likely that it would be expected by a worker. No doubt the fact that a particular type of employment carries with it the risk that a worker may be assaulted while performing his duties is a material fact in determining whether or not an injury thus caused arose "out of" his employment. This was the view taken by several of their Lordships in Trim's Case [1] and, with respect, I agree with it. But a proposition that would mean that a clerk working in the office of a warehouse who is there attacked and injured by an intruder does not suffer "personal injury by accident" but that a nightwatchman on duty in the same warehouse who is attacked and injured by the same intruder does suffer "personal injury by accident" cannot be accepted.

Weston v Great Boulder Gold Mines Ltd - [1964] HCA 59 - HCA 1964 case summary — Zoe

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Judgment (34 paragraphs)

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