cere senna Senne tiam nar eid tna en aietmtetonetE anette ear NR Ee et De a gD ne Se OHS in ete ao a AN Ee a Rn Ha He JUDGMENT No. ..2.2...f #4 [ais sores Spaces. IN THE FEDERAL COURT OF een ) ) . NEW SOUTH WALES DISTRICT REGISTRY ) No. G30 of 1978 ) GENERAL DIVISION ) BETWEEN: THE COMMONWEALTH OF AUSTRALIA Appellant AND: THOMAS HENRY LYON Respondent JUDGE MAKING ORDER: Deane J. DATE OF ORDER: 23 March, 1979 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The decision of the Commonwealth Employees' Compensation Tribunal be affirmed. 2. The Appellant Commonwealth pay the respondent's costs of this appeal. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. GEO of 1978 Ne ee a GENERAL DIVISION BETWEEN: THE COMMONWEALTH OF AUSTRALIA Appellant AND: THOMAS HENRY LYON Respondent CORAM: Deane J. Friday 23 March, 1979. REASONS FOR JUDGMENT The question of law involved in this appeal is a difficult one. I have, however, come to a firm conclusion in relation to it. In view of the time which has elapsed since the respondent sustained the injury to which the appeal relates, I propose to give judgment forthwith. In adopting this course I am conscious that I will do less than justice to the helpful submissions of counsel for both parties. The appellant, the Commonwealth of Australia, appeals j a decision of a Commonwealth Employees' Compensation Tribunal (A J.O. Ballard) under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). By its decision, the Tribunal, on reconsideration of a determination of a delegate of the Commissioner for Employees' Compensation, determined that certai injuries sustained by the respondent Thomas Henry Lyon were sustained by him in the course of his employment by the Common- wealth and that the respondent was entitled to compensation for total incapacity pursuant to s.45 of the Act for a specified period and to medical expenses pursuant to s.37 of the Act. The appeal to this Court is pursuant to s.95 of the Act and, by the terms of that section, is limited to a question of law. The respondent was, on 15 September, 1976, a clerk in the Bureau of Customs which constitutes part of the Department of Business and Consumer Affairs. On that day, he suffered a fracture of his right thumb while playing football in the Sydney Domain in a team drawn from employees of the Bureau of Customs. It is common ground between the parties that, if the injury which the respondent suffered arose out of or in the course of the respondent's employment by the Bureau of Customs, he was entitled to the compensation and the expenses awarded to him by the Tribunal by reason of the combined operation of ss.27, 45 and 37 of the Act. The issue between the parties before the delegate and, on reconsideration, the Tribunal was whether the injury arose out of or in the course of such employment. The issue before this Court, of necessity, falls into a narrower compass. As has been said, the appellant is restricted in its appeal to this Court to a question of law. The Tribunal accepted, as the test of whether the injury sustained by the respondent was sustained in the question formulated by Dixon J. Speechley ((1951) 84 C.L.R. 126 respondent "was doing something expected or authorized to do in It was not argued, on behalf of was in error in accepting that question as appropriate, circumstances of the present matter, course of his employment, the in Humphrey Earl Limited v. at p. 133) namely, whether the which he was reasonably required order to carry out his duties". the appellant, that the Tribunal in the to determine whether the accident occurred in the course of the respondent's employment. The Tribunal found that the respondent, when playing football at the time he sustained his injury, was doing something which he was reasonably authorized to do in order to carry out his duties. That finding was a finding of fact (Davidson v. Mould (1943) 44 S.R. (N.S.W.) 113 at p. 115; and, on appeal (1944) 69 C.L.R. 96 at pp. 110, 112; Commonwealth v. Oliver (1962) 107 C.L.R. 353 at p. 358). The question for me on this appeal that finding was the correct or is not whether, in my opinion, preferable one. The question for me on this appeal is whether there was a proper foundation in the evidence for it (see Davidson v. (1943) 44 S.R. (N.S.W.) 113 at p. 115; Mould, The Clancy (1961) W.C.R. (N.S.W.) 233 at p. Department of Health v. 235). The team in which the respondent played was, with the knowledge and approval of those in authority in the Bureau of "Customs Team". as has been Customs, known as the It was, mentioned, made up solely of players drawn from the Bureau. The Bureau gave significant support and assistance to the team. Organisation in relation to the team and its activities was performed during working hours and through Bureau facilities including the use of telephones and the use of accommodation for meetings. There was evidence that it was the well-establistk practice in the Bureau that when participation in the game involved a team member in being absent from duty for more than the period of his lunch time, he would complete his attendance record on the basis that he had resumed duties at the expiration of his lunch time period and would not subsequently be required to make up time in respect of the additional period in which participation in the game necessitated his absence from his ordinary duties. The game in which the respondent was injured was the grand final of a competition restricted to teams drawn from the various Commonwealth Departments and various State (N.S.W.) Departments and Instrumentalities. At, it would seem, about noon on the day of the game, the team gathered on premises of the Bureau. The respondent, with other team members, changed into football gear in one of the Bureau's amenity rooms. The team was transferred from the Bureau's premises to the Sydney Domain in a departmental bus. The Collector of Customs for New South Wales attended the match and wished "the Customs Team" good luck before the game commenced. The members of the team - which won ~ were permitted to absent themselves from work during the afternoon following the lunch time game to celebrate their success. The official Bureau Publication called "Contact" subsequently referred to the game in an article headed "Rugby League Victory" of which the first paragraph reads: "For the seventh time in etght years, Customs Greens displayed their dominance of the First Division Publte Service Rugby League competition in Sydney when they took out the Grand Final last month". At the relevant time, a system of flexible hours operated within the Bureau of Customs. The respondent signed his attendance record for the day of the match in a manner indicating that he was taking the period after 2 p.m. as "flexi time". The Tribunal found, as a fact, that the respondent did not need to do this and that the players in the game had been told that they could take the afternoon off after the game. The evidence made it clear that the practice of permitting the members of the team to absent themselves from ordinary duty during the afternoon of a grand final game was well-established. In the argument before me, the appellant placed considerable reliance on the fact that the respondent had indicated, on his attendance sheet, that he was electing to trea the afternoon set aside for anticipated "celebration" as "flexi time". The Tribunal plainly did not see this fact as of critica importance in the determination of the matter. In my view, it was plainly open to the Tribunal to adopt that approach. After the previous competition games in which the respondent had played, he had apparently returned to his ordinary duties. The Tribunal found, as a fact, that there was no need for the respondent to have elected to treat the afternoon as "flexi time" for the reason that, the members of the team had official permission, while remaining on duty, "to take the afternoon off after the game'. It was plainly open to the Tribunal to regard the absence of the members of the team from their ordinary duties during the afternoon of the game as being more important in establishing the connection between the respondent's employ- ment and his participation in the game than in constituting a break in the course of that employment. The question formulated by Dixon J. in Humphrey Earl Limited v. Speechley (supra) which the Tribunal applied as the appropriate.test has been applied by courts on innumerable occasions since its formulation and has been recognized and accepted in a number of subsequent cases in the High Court of Australia (see, for example, The Commonwealth v. Oliver, supra, at p. 363; Bill Williams Pty. Limited v. Williams (1972) 126 C.L.R. 146 at p. 159 and Danvers v. Commissioner for Railways (N.S.W.) (1969) 122 C.L.R. 529 at p. 536). That test is plainly a most useful aid as a criterion of inclusion in the concept of "course of employment"! (i.e. if the test is satisfied, the respondent was doing something in the course of his employment). If, however, the test is to be used as a criterion of exclusion (i.e. if the test is not satisfied the respondent was not doing something in the course of his employment) it is, in my respectful view, necessary to place a gloss on the words "in order to carry out his duties" which conclude the question formulated by Dixon J. so that that prima facie intractability may be tempered to accord with the current views of what comes within the scope of employment which are more liberal than those prevalent at the time Dixon J. formulated it (see per Dixon J. The Commonwealth v. Oliver, supra, at p. 358). Any such gloss tends to reintroduce general concepts such as what should be accepted as reasonably incidental to employment (see, for exampl the dissenting judgment of Roper C.J., in Equity in Muldoon v. Pickering (1955) W.C.R. (N.S.W.) 40 at p. 46 which was mentionec with approval by Dixon C.J., in Commonwealth v. Oliver, supra, at p. 358). It was as a test of inclusion that the Tribunal applied the formulation of Dixon J. Plainly, it was entitled so to apply it. That test should however, even when used as a criterion of inclusion, be seen as an aid in the application of the words used in s.27 of the Act and not as an exclusive substitute either for the words of the section or the assistance which is to be obtained as to théir scope and operation from other authorities. The essential question remains whether the relevant injury arose in the course of the employment. Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something which is a concomitant of, or reasonably incidental to, his employment to do that work (Kavanagh v. The Commonwealth (1960) 103 C.L.R. 547 at p. 559; The Commonwealth v. Oliver, supra, at p. 358). The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he sustains (Kavanagh v. The Commonwealth, supra, at pp. 555, 570; Commonwealth v. Oliver, supra, at pp. 359, 362). The scope of what is within it depends upon "the sufficiency of the connectio between the employment and the thing done by the employee" which "cannot but remain a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of the employment" (per Dixon J., Whittingha v. Commissioner of Railways (W.A.) (1931) 46 C.L.R. 22 at p. 29 and see, generally, per Stephen J. Bill Williams Pty. Limited v. Williams, supra, at pp. 158-159. In The Commonwealth v. Oliver (supra) the injuries which the employee suffered were sustained while he was playing a game of cricket during his lunch time. The playing of cricket matches between groups of employees "was countenanced, 1f not encouraged by'' the employer. The playing of the game at the precise place where it was played had been banned by the employer but the prohibition was not enforced. The location of the place of employment was such as to make it unlikely that employees would leave the site of their employment during their lunch time break and the game was played on the employer's premises. It was held by a majority of the High Court (Dixon C.J., and Menzies J., Owen J. dissenting) that in the circum- stances of the case the course of the employment of the employee extended over the luncheon break while he remained on the premis and, accordingly, the injury suffered by him arose in the course of his employment. In the course of his judgment, Dixon C.J., said (ibid at p. 358): "In the present case I think that the etreumstances of the employment make' it elear that the employees were not expected to leave the premises for Lunch, that the custom of playing for a time during the thirt minutes allowed for Lunch was a recognized practice and the proper inference is that the course of the employment extended over that half-hour". Menzies J. referred to the judgment of Jordan C.J., in Davidson v. Mould (supra) and concluded that that and other authorities established "that a worker who is having lunch on his employer's premises with his employer's sanction is, save in exceptional cases, "doing something which he was reasonably required, expected or authorized to do in order to carry out his duties". His Honour continued (ibid at p. 363): "If this ts to be said about taking lunch, why should it not also be satd about taking a walk, dozing in the sun, or playing a game of table tennis or cricket during a break which ts provided as a respite from work and not merely to enable the worker to have something to eat and drink?" Subsequently, in his judgment, Menzies J., concluded (ibid, p. 364): " It seems to me that we must determine the question before us upon the evidence looked at, not agatnst the background of a particular decision given thirty years ago upon its own facts, but against the background of what seems to me to be a widely-accepted and senstble present-day practice of employers encour- aging workers to spend intervals between working hours, whtch must often be spent upon the employers' premises, in recreational activities. Against this background the evidence here which shows that the Commonwealth adopted the practtce referred to, does seem to me to potnt to the conelusion that in playing ertcket as he did, the respondent was engaged upon an activity tnetdental to his employment". It was plainly an important factor in the decision in Oliver's Case (supra) that the injury which the employee sustained was sustained on the employer's premises. In the present case, the respondent's injury was sustained on a playing field over which his employer had no control whatsoever. Were it not for that distinction and the fact that the "lunch time period" in the present matter was considerably longer than the "lunch time period" in Oliver's Case (supra) the respondent's case in the present matter would, in my view, be a considerably stronger one than was the employee's case in the Commonwealth -10~ v. Oliver (supra). In Oliver's Case (supra) the game was "countenanced if not encouraged, by'' the employer. In the present case the game was enthusiastically encouraged by the employer. In Oliver's Case (supra), the game took place in breach, as to the precise location, of an unenforced ban by the employer. In the present case, the employer actually transported the respondent to the place where the game was played. The particular game in Oliver's Case (supra) enjoyed no particular recognition from the employer. The Collector of Customs extended his encouragement to the players in the game in the present case and the official publication of the Bureau featured the success in it of the ''Customs Greens". It must be recognized that the control which an employe enjoys over his premises is commonly a critical factor in deter- mining that an employee is in the course of his employment notwithstanding the fact that he is off duty in an interval between working hours. It may well be that, in most cases, the fact that a worker has left his employer's premises altogether will constitute a prima facie interruption of the course of his employment (see, e.g., Davidson v. Mould, supra, at p. 120 and The Commonwealth v. Oliver, supra, at p. 363). It cannot, however, be said as a matter of law that an employee's course of employment is, of necessity, broken when ever he leaves his employer's premises during an interval between work periods. In the present case, the significance of the fact that the respondent left the employer's premises was, to no small extent, negatived by the fact that the employer made premises available in which the employee could change into his football gear and eee de eee ci a ite te Aenean nate nets nite ans 4 ata niltNaiaabedien inns taess rane BD -1lil- then transferred him, in a departmental bus, to the place where the game was played. The conclusion which I have reached is that the Tribunal's finding that the respondent's injury was sustained in the course of his employment was reasonably open on the evidence before it. That conclusion is sufficient to dispose of the matter in favour of the respondent. "If different conclusions are reasonably possible the determination of which is the correct conclusion is a question of fact" (Bill Williams Pty. Limited v. Williams, supra, at p. 156). It is not, however necessary that I rest my decision on the appeal on that narrow ground alone for the reason that, on the facts before the Tribunal, I agree with the conclusion which it reached. In the circumstances, it is unnecessary for me to consider an alternative submission made on behalf of the respondent that the injury, in any. event, arose out of the respondent's employ- ment. I affirm the decision of the Commonwealth Employees' Compensation Tribunal. I order the appellant Commonwealth to pay the respondent's costs of this appeal.