3 I find that at some time before the accident the plaintiff, at the request of the defendant, submitted an amended duty statement which was in due course returned to him unamended.

4 There is no other direct evidence that the defendant accepted the amended duty statement, but I find that the plaintiff believed, not unreasonably, that the defendant had accepted the amended duty statement and thereafter acted in the belief that his contract of employment had been varied in accordance with it. I hold that in the circumstances the contract should be regarded as having been varied by the conduct of the parties. That duty statement particularised the plaintiff's duties as including, amongst others, "The administration of the Upper Natone range including the following duties: ... Fire protection in State forest and Crown Land including organisation of: .... (ii) Detection and communication. ... (iv) Range fire control and implementation of the Penguin fire plan." The relevant fire plan included a document headed "Duty Roster Burnie District 198182" which provided that on 3rd January 1982 the plaintiff was to be the Standby Officer for the Penguin range. Another document identified as Section 4 which formed part of the Fire Plan was headed 'Preparedness in relation to FDR weekends and holidays". "FDR" stands for Fire Danger Rating. The duty officer for that day, Mr Nicholls, gave evidence that the Fire Danger Rating for 3rd January was in the moderate range. According to this document that rating placed the plaintiff in category B which was referred to at the foot of the document as follows: "Category B: In immediate readiness at an approved location contactable by phone or radio." The area within which the residence and the workshop and store were situated was an approved location and I shall hereafter refer to it as "the approved location". The document also contained the following:

(1) This section is a GUIDE ONLY to District Staff's preparedness with respect to the Fire Danger Rating. The OIC may vary the level of preparedness in any way to meet the requirements of the actual fire situation."

Counsel for the defendant conceded that the plaintiff was included in the phrase "District Staff". Although it is alleged by the defendant that on the preceding Thursday or Friday the duty officer told the plaintiff that no duty was required for the Friday and that it was unlikely that any would be required for the Saturday or the Sunday, there is no evidence that there was any express variation of the level of preparedness required.

5 The relationship between the parties was also governed by Standing Instructions and by custom. One of the relevant standing instructions which was headed "Subject: Allowances and concession for fire protection duties" contained this definition:-

"2(f) 'Standby' means to hold oneself in immediate readiness, at an approved location capable of being contacted by radio or telephone, for duty on a Saturday, Sunday or Public Holiday."

6 The plaintiff gave evidence that on the basis of the Fire Danger Rating and the materials to which I have referred he regarded himself as being in category B on 3rd January. He said that he understood immediate readiness to mean that he had to be properly dressed, have fire fighting equipment prepared and be ready to respond to instructions or investigate reports of fires received by phone. He agreed that he was not entitled to be paid an extra allowance for the duties he performed on 3rd January.

7 Mr Nichols said that generally the practice was that if the rostered Standby Officer was not contacted by about 11am he could regard himself as not being on standby for that day. He drew a distinction between being rostered for standby and being actually placed on standby. He said that on 3rd January the plaintiff was not placed on standby and was not on paid standby, but that as he had not sought or obtained permission to change his location he was required to be in the location at Upper Natone available to immediately respond to a telephone call in the event of an emergency.

8 Mr Sayther who was the Regional Management Forester at the relevant time said that a person rostered in category B would not automatically be required to assume the state of readiness referred to in Section 4 of the Fire Plan. He gave evidence distinguishing between the obligations of an employee who was rostered for standby and an employee who was actually on standby. He said that the position of an employee rostered for standby would vary with the circumstances, but that in substance it involved being on call. The readiness and speed with which the employee would be required to respond to a call could be varied by arrangement. Standing by required the employee to be in a state of immediate readiness so that in the event of a fire he could be contacted and would be in a position to deal with the fire immediately. His view, in essence, was that on the 3rd January the plaintiff was obliged to remain in the approved location and make himself available to go on standby if required but that he was not required to keep himself in the same state of readiness as being on standby would have required.

9 I record that neither party objected to the admission of the evidence given by the foregoing witnesses, notwithstanding that in part it virtually consisted of expressions of opinion about the legal relationship between the parties.

10 The defendant by para4 of its defence admits the following allegation made in the Grounds and Particulars of the plaintiff's claim:-

"4 On the 3rd day of January 1982 the plaintiff was rostered for standby for the area known as the Penguin Range (including Upper Natone) in the Defendant's Burnie district and he was thereby required to be in immediate readiness at an approved location contactable by phone or radio. The said residence store and office complex was an approved location."

Insofar as the admission that the plaintiff was required to be in immediate readiness is at variance with the evidence adduced by the defendant, I find in accordance with the admission.

11 Paragraphs 5 of the Grounds and Particulars of the plaintiff's claim and of the defence are as follows:

"5 On the 3rd day of January 1982 the Plaintiff pursuant to his contract of employment was required in the course of his duties to undertake fire protection work with the Defendant and to be on standby as aforesaid."

"5 Save that on the 3rd day of January, 1982 the plaintiff pursuant to his contract of employment was required to be rostered for standby the Defendant denies the allegations contained in paragraph 5 of the Grounds and Particulars. "

12 It is arguable that the denial by the defendant in para5 of the defence of the allegation that the defendant was "required .... to be on standby as aforesaid" is inconsistent with its admission of para4 of the Grounds and Particulars. If there is any inconsistency between paras4 and 5 of the defence the effect of the admission in para4 is not thereby reduced. A denial in a defence is not necessarily an assertion of the truth of the negation of that which is denied. Without more a denial is simply an indication by the defendant that it puts the plaintiff to proof of the matter asserted and thus a denial of an allegation in one part of a defence does not qualify or nullify the effect of an admission of the truth of the same allegation in another part of the defence. I record that counsel for the plaintiff expressly placed reliance upon the admission contained in para4 of the defence and no application to amend that paragraph was made by the defendant.

13 I find that on 3rd January 1982 the plaintiff was required to be present in the approved location within earshot of the telephone. I find that he was not on paid standby but that he was compensated for the inconvenience of being on call on that day and on other days by receiving additional annual leave. I find that the plaintiff was required to be in a position to respond more readily than would have been the case had he merely been rostered for standby as defined by Mr Sayther. This does not necessarily mean that I am rejecting Mr Sayther's evidence, but the finding follows from the admission in the defence. The allegation in para4 of the Grounds and Particulars that the plaintiff was required to be in immediate readiness in addition to being contactable by telephone suggests that his duties extended beyond merely making himself available to answer the telephone and on the evidence I infer that those duties included being ready to immediately investigate or deal with a report of a fire or take some similar action. I conclude that the plaintiff was required to remain within the approved location not merely because that was where the duty officer expected to be able to contact him, but because that was where he had to be so that he would be in a position to immediately act upon any calls he might receive.

14 I find that on 3rd January at about 11.30am the plaintiff went to the workshop for the purpose of fitting a guard to a saw bench and motor which belonged to him. Before doing so he ran a piece of wood through the saw and in the course of doing so, for reasons which are not material, the wood was violently ejected and struck and injured the plaintiff's hand. Going to the workshop and operating the saw had no connection with the plaintiff's employment with the defendant.

15 The plaintiff does not contend that he suffered personal injury by accident arising out of and in the course of his employment within the meaning of s5(1) of the Act, but submits that he is entitled to compensation by virtue of s5(3A)(a) of the Act, which reads as follows:

"5 - ..................

(3A) Without limiting the generality of the provisions of subsection (1) but subject to the provisions of subsection (2), an injury by accident to a worker shall be deemed to arise out of and in the course of the employment if the accident occurs -

(a) while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment is present at his place of employment;"

16 In order to bring himself within those provisions, the plaintiff has to establish four things:

2 that on that day the plaintiff attended at his place of employment.

3 that that attendance was pursuant to his contract of employment; and

4 that the accident occurred while he was present at his place of employment.

17 The defendant concedes that the workshop where the accident occurred was or was part of the plaintiff's place of employment, but contends that s5(3A)(a) does not apply on the grounds that the day upon which the accident occurred was not a working day and that the plaintiff did not attend at that place of employment pursuant to his contract of employment.

18 In my view, the relevant propositions of law applicable to this case are as follows. Section 5(3A)(a) should not be read subject to the provisions of s5(1) and if the conditions referred to in s5(3A)(a) are satisfied then an injury by accident is deemed - not merely presumed - to arise out of and in the course of the employment: Jones v Attorney General (1957) Tas SR 36, Buchanan and Brock Pty Ltd v Harris [1957] HCA 71; (1957) 98 CLR 22 at 27, Blackburn v Campbell [1966] Tas SR 186. Section 5(3A)(a) is capable of operating notwithstanding that "place of employment" referred to therein is also the worker's residence; if the place of employment is also the worker's residence, the phrase "has attended at" should be construed as including being in attendance at or being present at that residence; whether a place is a place of employment and whether a worker's attendance at a place can be regarded as being pursuant to his contract of employment will depend upon what the worker was obliged to do under that contract and whether his presence in that place was incidental to his performance of his contractual obligations: Van Oosterom v Australian Metropolitan Life Assurance Co Ltd [1960] VicRp 80; [1960] VR 507. Carbis v Bounceball Pty Ltd [1972] VicRp 20; [1972] VR 211, Mason v Social Welfare Department [1974] VicRp 62; [1974] VR 506, Clissold v Country Roads Board [1981] VicRp 29; [1981] VR 259. I do not regard the fact that the expression "place of employment was given an extended meaning in the legislation which was applied in the foregoing cases affects the applicability of the reasoning used in them to s5(3A)(a). A "working day" is any day upon which a worker is obliged by his contract of employment to work and the fact that for some reason it turns out that no work is done does not change the quality of the day: Mala v Thos Borthwick & Sons (1974) 4 WCBD (Vic) 418. Francis v R & M Johns Bros Pty Ltd (1954) WCBD 100.

19 In the present case I find that on Sunday, 3rd January 1982 the plaintiff was obliged by his contract of employment to remain within the general area of the approved location and that the residence and the workshop were within the boundaries of that area. On the occasion when he was injured the plaintiff did not attend the workshop pursuant to his contract of employment but, in my view, neither the workshop nor any other particular place within the approved location was the plaintiff's "place of employment" for the purposes of s5(3A)(a). The plaintiff's obligation was to remain within the approved location and be in a state of immediate readiness. In my view therefore the plaintiff's "place of employment" was the whole of the approved location and the plaintiff's presence anywhere within it while he was in a state of readiness and was able to bear and answer the telephone was pursuant to his contract of employment whatever he might have been doing and wherever within that location he might have been at any particular time. The 3rd January was a working day because on that day the plaintiff was obliged to remain within the location and be ready to carry out any orders he might receive. The fact that as it turned out he did not receive any orders and that the only work he did was to remain within the location listening to the telephone ready to carry out orders does not mean that the day lost its quality of being a working day. I find that the requirements of s5(3A)(a) have been met. I am satisfied that on 3rd January 1982 the plaintiff suffered personal injury by accident arising out of and in the course of his employment.

20 There will be judgment for the plaintiff for the agreed sum of $35,202.73 made up as follows: