Whiting v Brambles Industries Ltd

The appellant is the widow of a workman who was killed in a motor accident on 14th June 1973. In proceedings brought by the appellant against the respondent, who was the employer of the deceased workman, to recover workers' compensation, it was held in the Workers' Compensation Commission of New South Wales that the deceased died as the result of injury received on a daily or other periodic journey between his place of abode and place of employment. On appeal the Court of Appeal (by a majority) held that this finding could not be sustained and set aside the award of compensation which had been made in favour of the appellant.

The facts of the case are not in dispute. Although the respondent's depot was at Glebe the deceased was ordinarily required to carry out the duties of his employment at the brewery of Toohey's Ltd. at Auburn. The respondent had a contract with Toohey's Ltd. to provide forklift driving services at the brewery, and the deceased was one of a number of men employed by the respondent to drive the forklift vehicles. His normal hours of work were from 6 a.m. to 4 p.m. On 12th June 1973 the employees of Toohey's Ltd. who did the production work at the brewery had gone on strike. Until they resumed work there was nothing for the forklift drivers to do. A meeting of the workers who were on strike was arranged for 9 a.m. on 14th June for the purpose of deciding whether and when work would be resumed. In accordance with normal practice, the forklift drivers attended at the brewery on that day to be ready to start work immediately if the strikers returned to work. The respondent expected its employees to follow that practice. The respondent also expected - required would seem to strong a word - the forklift drivers to attend at the depot at Glebe if, because of a strike, there was no work for them at Auburn. In practice drivers sometimes went home rather than to Glebe, and there was evidence that if they went to the depot they would only stand by, and not work, although by attending they would entitle themselves to full pay for the day. The deceased was neither on strike nor a member of the union to which the striking workers belonged and was not entitled to attend the meeting arranged for 14th June. He arrived at the brewery at about 9 a.m. on the morning of that day dressed for work. He was ready to man his forklift vehicle if the meeting decided to resume work immediately. In fact it was decided that the striking workers would go back to work on the following day. The gates of the brewery were closed at all material times on 14th June and the meeting was held outside them. For this reason the deceased did not enter the premises of the brewery and he never got as far as his forklift vehicle. At the conclusion of the meeting the forklift drivers did not go to the respondent's depot at Glebe, although it was pay-day. Apparently they wished to show their sympathy with the striking workers. It is unlikely that it mattered to the respondent whether they went to the depot or not. In any event arrangements were made by the respondent for the forklift drivers to be paid at Auburn rather than at Glebe and the deceased remained outside the brewery until he was paid. Then, at about noon, he set out on his journey home. It is not now disputed that he was travelling to his place of abode when he sustained the injuries that caused his death.

The appellant, as a dependant of the deceased, was entitled to receive compensation from the respondent if the deceased had "received injury on any of the daily or other periodic journeys referred to in paragraph (c) of this sub-section ": see s. 7(1) (b) of the Workers' Compensation Act, 1926 N.S.W. (as amended) ("the Act"). The entitlement would not have arisen if the injury was received during or after an interruption of, deviation from, or break in the journey of the kinds mentioned in s. 7(1) (b) (i) and (ii), but it was not submitted before us that the injury was so received. Paragraph (c) of s. 7(1) provides as follows:

The daily or other periodic journeys referred to in paragraph (b) of this subsection shall be

(i) between the worker's place of abode and place of employment;

The expression "place of employment" is defined in s. 6(1) to mean - the premises, works, plant or place for the time being occupied by or under the control or management of the employer by whom the worker concerned is employed, and on or at or in connection with which the worker was employed at the time of the injury. If that definition is applied to s. 7(1) (c) (i) the result in some circumstances may not be that which the Legislature presumably intended, because some workers are required to carry out the duties of their employment at places which would not be places of employment within the definition. However, it is unnecessary to consider whether there is anything in the context of s. 7 to exclude the definition in s. 6(1). It was accepted before us that the place where the forklift vehicles were situated was the deceased's "place of employment" within the definition. The submission made on behalf of the respondent was that the journey in the course of which the deceased sustained his fatal injuries did not answer the requisite description because it did not commence at his place of employment; on that day he had never been to his place of employment, because the gates leading to it had been closed against him. Further, it was submitted that the deceased had not gone to the premises of Toohey's Ltd. on that day with the intention of working; at best he intended to work conditionally upon the meeting deciding to end the strike.

The words of s. 7(1) (c) (i) are somewhat compressed. Although they refer to a journey "between the worker's place of abode and place of employment" they plainly include a journey which commences at the place of employment and ends at the place of abode. But it is not necessary, in order that a journey should answer the statutory description, that the workman must have in fact departed from his place of employment and ended his journey at his place of abode. The section does not so provide. The word "between" imports a relationship between the journey and the two places mentioned. The journey must have been along a route between the two places, and the worker must be travelling for some reason connected with his employment. Speaking generally it might be enough to say that he must be "travelling between his place of residence and his place of employment for the purpose of commencing work or of returning to his home after his work has finished": Landers v. Dawson [1] . However, other purposes of travel connected with his work can be suggested, and it would be sufficient if the reason for the journey homewards was that there was no work available at the place of employment. However, a journey "between" two places need not necessarily begin at one of those places and end at the other. It cannot be doubted that if a worker is killed or injured on his way from his place of employment to his place of abode, and for that reason does not reach his destination, the journey is none the less one "between [his] place of abode and place of employment". It was accordingly not suggested in the present case that the fact that the deceased did not arrive at his home prevented the journey from answering the description in s. 7(1) (c) (i). Similarly, if a worker is travelling to his place of abode, the journey may in some circumstances be one "between the worker's place of abode and place of employment" notwithstanding that he has not departed from the place where he is employed. In particular, a workman who sets out from home with the intention of going to work, but is prevented by circumstances beyond his control (such as a flood, a fire or the activities of a picket line) from reaching his place of employment and who then turns back towards his home, may properly be said to be journeying between his "place of abode and place of employment" while he is on his homeward journey.

In the present case it was right to conclude that the deceased left home on the morning of 14th June 1973 with the intention of going to his place of employment and of working there if work was available. He in fact journeyed as far as the gates leading to his place of employment. He made the journey in accordance with the normal practice which his employer expected him to follow. He did not reach the actual place of his employment because the gates were shut. When he found that no work was available, he began to return to his home. The journey that he then commenced can rightly be regarded as one between his place of employment and his place of abode. It seems quite immaterial that he was expected, in theory at least, to go instead to other premises occupied by his employer. The fact that he might have made another journey, which would itself no doubt have been in the course of his employment, did not alter the character of the journey which he actually made.

The journey was properly treated as a "daily or other periodic" journey. The deceased made a journey of that kind every working day. The fact that he normally made it at a different time of the day is not material. A journey may be periodic notwithstanding that it takes place at a different time each day, as in the case of a man who works variable hours. A man who leaves work early to go home because of illness can be said to be making a periodic journey notwithstanding that he normally leaves his employment at a later hour. A man who leaves home later than normal to go to work does not, by reason only of his unpunctuality, disentitle himself or his dependants to compensation under s. 7(1) (b).

The conclusion reached by the Workers' Compensation Commission was one that it was entitled to reach on the evidence before it. The Court of Appeal should not have set aside the award made by the Commission and the appeal should be allowed.