fant CATCHWORDS Workers" Compensation - appeal from Administrative Appeals Tribunal - question of law - whether employee injured on a journey from his employment or from his place of employment whether conclusion that employee's attendance at a mess party to a certain hour was incidental to employment was. only conclusion open to Tribunal - whether finding that kind of transport used by the employee was not open to the Tribunal Compensation (Commonwealth Government Employees) Act 1971, ss. 7(2), 27(1), 32, 33 Administrative Appeals Tribunal Act 1975, s.44 DIANE MAUNDER v. THE COMMONWEALTH OF AUSTRALIA No. N.S.W. G 266 of 1982 CORAM: Sheppard, Morling and Neaves JJ. 18 November 1983 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G266 of 1952 www vw GENERAL DIVISION BETWEEN: DIANE MAUNDER ) Appellant ' AND: THE COMMONWEALTH OF AUSTRALIA Respondent ORDERS JUDGES MAKING ORDERS Sheppard, Morling and Neaves JJ. DATE OF ORDERS 18 November 1983 WHERE MADE : Sydney an THE COURT ORDERS THAT: 1. The appeal, be dismissed. 2. The appellant pay the respondent's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G266 of 1982 GENERAL DIVISION BETWEEN: DIANE MAUNDER Appellant AND: THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: Sheppard, Morling and Neaves JJ. 18 November 1983 REASONS FOR JUDGMENT THE COURT: This is an appeal from a decision of the Administrative Appeals Tribunal under s.44 of the Administrative Appeals Tribunal Act 1975 which provides for an appeal to this court' on a question of law. The appellant is the widow of the late Captain Owen Maunder who sustained personal injuries on 23 August 1980 which resulted in his death on 30 August 1980. Arising out of the death of her husband the appellant made a claim for compensation pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). The basis of her claim was that when her husband received the 2's injuries from which he subsequently died, he was on a journey from his employment within the meaning of s.32 of the Act, and from his place of employment within the meaning of s.33. The claim for compensation was disallowed by the Delegate of the Commissioner for Employees' Compensation and the proceedings in the Administrative Appeals Tribunal were a review of the Delegate's determination. On 31 March' 1980 Captain Maunder, who was a member of the Australian Regular Army jcined the Monash University ny j ' | Regiment as Adjutant Quartermaster. On Friday 22 August 1980 Captain Maunder attended a party in the Sergeants' Mess. The party was to celebrate the birthday of two members of the Mess. The Commanding Officer of the Regiment had given tacit approval to the holding of the function. It was usual for the Mess to hold what was referred to as a "Happy Hour" as a' regular occurrence on Friday evenings at the Mess. Ordinarily "Happy Hours" ran from about 5.30 p.m. to about 7.30 p.m. The party on 22 August commenced at about 5,30 p.m. and continued until the following morning. Captain Maunder remained in the Mess until 2.30 or 3 a.m. on August 23. There had been as many as 30 men and women in attendance at the party but when Captain Maunder left at only 7 or 8 remained. The Tribunal found that there was no specific order requiring the party to end at any particular time. 3. The Tribunal found that it was most likely that after Captain Maunder left the party he either rested in his office, which was adjacent to the Mess, or in his car which was parked nearby. It was unable to make a finding as to when he drove his car out of the regimental depot. But having regard to the fact that the accident in which Captain Maunder received his injuries occurred at 4.54.a.m. on August 23 and to the further fact that the site of the accident was 20 minutes by car from the depot it seems probable that he left the 'depot about 4.30 a.m. In this respect the Tribunal said in its decision that it' was not satisfied that Captain Maunder deviated from or interrupted his journey once that he left the depot. ' At the time of the accident Captain Maunder had only $1 in tash on his person. This sum was insufficient for him to pay his fare by public transport from the depot'!to his home at Glen Waverley. There was, in any event, no public yt transport available at that hour of the morning from the area in which the depot was situated to Glen Waverley. The Tribunal found that at the time of the accident Captain Maunder was travelling by a normal route leading from the regimental depot to his home. There were no licensed 'premises between the depot and the site of the accident which would have been. open after 2.30 a.m. on 23 August 1980. When the accident occurred Captain Maunder had a blood alcohol level of .273. Driving a motor vehicle with a blood alcohol level of .05 constitutes a breach of the Motor Car Act 1958 (Vic.) s.81A. The Tribunal accepted evidence from an experienced medical practitioner that the driver of a motor vehicle with a blood'alcohol reading of .273 would have impaired co-ordination, muscular functions and ability to i] properly control a motor vehicle and would be very much under the influence of alcohol. i The Tribunal found that Captain Maunder's attendance t at the party was incidental to his employment and remained so for a period. However it further found that:- "there came a time not precisely to be identified when his continued participation was no longer an incident of his employment but was referable to his own personal choice to ,continue at a social gathering with a continuing in-take of liquor. That in-take and his remaining at the party was beyond any requirement of or incident of duty; and not incidental to his employment. He was, as the saying goes, ona 'frolic of his own'. I find that his participation in the party, at the latest after 10.30 P-m. on 22 August 1980, was 'not in the' course of his employment and was not incidental to his employment." The Tribunal further found that after leaving the party and before leaving the depot Captain Maunder did not work or attempt to work. Accordingly it found that when Captain Maunder was injured on the morning of 23 August 1980 he was not on a journey from his employment. The claim for compensation based on s.32 of the Act therefore failed. 5. Further, the Tribunal found that Captain Maunder's vehicle was not a vehicle "of a kind that the employee could ... have been reasonably expected to use" within the meaning of sub-section 33(3)(b)({iii) 'of the Act. It found that, having regard to all the circumstances of the case, including Captain Maunder's inebriation, "it could not have been considered as reasonable that he should attempt to go home or to go home by driving his motor vehicle." Accordingly the alaim for compensation based upon 8.33 of the Act also failed. Io. Before referring to the arguments advanced in support of the 'appeal it is convenient to make brief reference to the relevant provisions of the Act. Sub-section 7(2) provides that a member of the Defence Force shall, for the purposes of the Act, be deemed to be employed by the Commonwealth. By, virtue of sub-section 27(1) 1£ personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is liable to pay compensation in respect of that injury in accordance with the Act. Sub-section 32(1) provides as follows: "32. (1) Subject to this section, this Act applies in relation to a journey by an employee to his employment by the Commonwealth (irrespective of the place at which the journey commenced) or in relation to a journey by an employee from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end) as if the journey constituted part of his employ- ment by the Commonwealth." 6. Section 33 provides, in part, as follows: "33 (1) Subject to this section and sections 35 and 36, where an employee (other than an employee to whom the next succeeding section applies) makes a journey to or from his place of employment, then (a) eee (b) aun the case of a journey from that place of employment - if the journey commenced during the period of one hour immediately after the time when he ceased work (in this section called a 'prescribed period'), the journey shall be deemed, for the purposes of sub-section (1) of the last preceding section, to have been a journey from his employment by the Commonwealth. (2) sees (3) Where — (a) an employee makes a journey in relation to which paragraph (b) of sub-section (1) does not apply by reason only that the journey commenced after the expiration of the prescribed period referred to in that paragraph; (b))' the journey was made by the first means of transport — (i) that was conveniently available for use by the employee; (ii) that' would ordinarily have enabled the employee to commence' the yourney after the time when he ceased work; and (ii) that was of a kind that' the employee could, having regard to all the circumstances of the case, have been reasonably expected to use; and (c) the employee did not make an earlier journey from his place of employment after the commencement of that period, me, ~~ 7. the first-mentioned journey shall be deemed to be a journey in relation to which that paragraph applies." The principal attack on the Tribunal's decision was that it erred in law in finding that Captain Maunder's attendance at the party after 10.30 p.m. on August 22 was not an incident of his employment. It was submitted that, it having been found that attendance at the party was incidental to his employment up until that hour, there was no evidence justifying a finding that it ceased to be incidental thereafter. We see the force of the submission and we have hesitated before concluding, as we have, that it must be rejected. It was, of course, well open to the Tribunal to find that Captain Maunder's attendance at, the party up to 10.30 p.m. was incidental to his employment by the Commonwealth. Indeed, the contrary was not asserted by the respondent. Injury in the course of employment means an injury sustained while the worker 1s engaged in the work which he is employed to do or in something incidental to that work. See Kavanagh v The Commonwealth (1960) 103 C.L.R. 547 at p. 559 per Fullagar J. and Bill Williams Pty. Limited v Williams (1972) 126 C.L.R. 146 at pp. 158-9 per Stephen J. where his Honour said: 8. "That which is incidental to a worker's work depends upon 'the sufficiency of the connexion between the employment and the thing done by the employee' which is 'a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment': Whittingham v Commissioner of Railways (W.A.) per Dixon J. ((1931) 46 C.L.R. 22 at p-29). It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he 'was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties': Humphre Earl Ltd. v Speechley per Dixon J. ((1951) 84 C.L.R. 126, at p.133): whether the accident has happened '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': Pearson v Fremantle Harbour Trust ((1929) 42 C.L.R. 320 at p.330)." The one, but difficult, question to be determined on this aspect of the case 1s whether on the facts found by the Tribunal the only conclusion reasonably open to it was that attendance at the party until between 2.30 a.m. and 3 a.m. was incidental to Captain Maunder's employment. If that was the only conclusion open the Tribunal's decision manifests an error of law which can be corrected on appeal to this court. If it was not, then even if we would not have reached the same decision, it is not reviewable on appeal to this court. As Walsh J. pointed out in Williams' Case, supra, at p.156, it is sometimes a difficult task to determine whether different conclusions or but one conclusion are or is reasonably open. His Honour also pointed out that it is easy, in making a decision on that 9. question "to slip across the boundary which must be maintained between the evaluation of the legal consequences of facts already found and the making of findings of fact." Furthermore as Jordan C.J. said in Davidson v Mould (1943), 44 S.R. (N.S.W.) 113 at p.115 of the question whether an injury arose out of or in the course of employment: "In approaching the subject, it needs to be remembered that the question whether a particular injury arose out of or in the course of employment 1s one of fact. In this connection, a question of law arises when it 1s contended on the one hand that there was no material before the Commission on which it could find that it did, or on the other that on the material which the Commission accepted and its findings on that material it necessarily followed that it did: Tompsett v Southern Portland Cement Lamited ((1941) 41 S.R. 126 at 132; 58 W.N. 137 at 139; Austn Digest (1941) 154). Between these two extremes, the question is one of degree, depending on the view taken of the relative importance and significance of the facts proved in evidence; and a decision either way by the Commission 1s one of fact and cannot be disturbed by this Court: Dennis v Watt ((1942) 43 S.R. 32; 60 W.N. 7).," It is plain that, in the present case, the Tribunal correctly accepted that the scope of Captain Maunder's employment included all that was incidental to that employ- ment. It held, in effect, that it was an incident of his duty to be present at the Mess party until 10.30 p.m., but not thereafter. In our opinion that finding was a finding of fact. It was reasonably open on the evidence before it. 10. The redson why his presence at the party until 10.30 p.m. was incidental to his employment was that it served the purpose of fostering the esprit de corps of his regiment and contributed to the morale of the non- commissioned officers who were members of the Mess. The evidence apparently satisfied the Tribunal that these purposes were not served by Captain Maunder's attendance at the party after 10.30 p.m. We are unable to say that the only conclusion properly open to the Tribtial was that these purposes were served by his attendance é: th# party up until the time he left it. The party commenced at 5.30 p.m. on August 22. We do not think that attendance at it for an indefinite period thereafter would necessarily have been an incident of Captain Maunder's employment. If the party had continued for 24 hours and Captain Maunder had stayed until its' conclusion, it could not have been said that the only finding reasonably open was that his attendance until the conclusion was an incident of his employment, although such a finding may have been open. On the facts of the present case, it was a matter of degree whether attendance at the party until between 2.30 a.m. and 3 a.m. on August 23 was an incident of Captain Maunder's employment. Eeing a matter of degree, it was a matter of fact, and for the Tribunal 'to determine. ,See Miller Hotels Pty. Limited v Tunks (1973) W.C.R. 154 at 155 per Reynolds J.A., with whom Hutley J.A. and Bowen J.A. (as he then was) agreed. ' 1l. We are therefore of the opinion that it has not been shown that the Tribunal erred in law in finding that Captain Maunder's attendance at the party after 10.30 p.m. on August 22 was not an incident of his employment. Counsel for the appellant submitted a further argument that the Tribunal's reasons erroneously proceeded , upon the basis that in order for Captain Maunder's attend- . ance at the party to have been incidental to his employment, ut 'was necessary that such attendance should have .been a requirement of his duties as Adjutant.' This submission was based upon a passage in the Tribunal's reasons in which it said, after referring to Captain Maunder's intake of liquor and his attendance at the party until between 2.30 a.m. and 3 a.m: "That intake and his remaining at the party was beyond .any requirement of or incident of duty; andi not incidental to his employment." However, 1t is plain from a reading of the whole of the Tribunal's reasons that it accepted that the appellant did not have to establish that her husband's attendance at the party was a requirement of his duties. Indeed, the use of the phrase "or incident of duty" demonstrates that this was the Tribunal's view. 12. Had we been of the opinion that the only conclusion reasonably open on the evidence was that Captain Maunder's attendance at the party until he left it between 2.30 a.m. and 3 a.m. was incidental to his employment, the question would have arisen whether the time which elapsed between his leaving the party and the commencement of his journey home disqualified that journey as "a journey by an employee from his employment by the Commonwealth" within the meaning of those words in sub-section 32(1). Counsel for the Commonwealth submitted that it did. He relied upon The Commonwealth v Wright (1956) 96 C.L.R. 536 at 557 per Kitto Jd. where his Honour said: "What, then, are the terminal points of a journey which possesses the character indicated by the words 'travelling to or from his employment by the Commonwealth' ? One is clear enough: it must be either a place to which the employee is going because the performance of his duties as an employee of the Commonwealth awaits him there, or a place from which he has set out upon ceasing to |! be engagea@ in the performance of those duties." Reliance was also placed upon a passage from the judgment of Fullagar J. in the same case, in which his Honour said: ' "But aman cannot, in my opinion, properly be said to be travelling from his employment unless the occasion of his journey 1s the cessation for the time being of the duties of his employment and his primary purpose is to leave those duties behind him." (96 C.L.R. 536 at 553) 13. Since the Tribunal made no specific finding on this question, we would have remitted the matter for further consideration had we been of the opinion that the Tribunal had erred in law in finding that attendance at the party after 10.30 p.m. on August 22 was not incidental to Captain Maunder's employment. We see the 'force of the respondent's argument that the time which elapsed after Captain Maunder left the party and before he set out on his journey home was such that he cannot be said to have commenced that journey upon ceasing to be engaged in the performance of his duties. But had the Tribunal found that Captain Maunder was on duty until he left the party, 1t may have been open to it to find that when he received his fatal injuries he was journeying "from his employment" within the meaning of those words in sub-section 32(1). As we do not need to resolve that question to dispose of the appeal, we prefer to leave the question unanswered. Counsel for the appellant also submitted that the Tribunal erred in law in rejecting the appellant's claim for compensation insofar as it was based upon s.33 of the Act. It was argued that the journey 1n the course of which Captain Maunder was injured was a journey from his place of employment, that the journey was a journey in relation to which paragraph 33(1)(b) did not apply by reason only that the journey commenced after the expiration of the prescribed period referred to in that paragraph, that the journey was 14. made in circumstances falling within paragraph 33(3)(b) and that Captain Maunder did not make an earlier journey from his place of employment after the commencement of that prescribed period. The consequence was, so 1t was argued, that the journey is to be deemed to be a journey in relation to which paragraph 33(1)(b) applied, that 1s to say it was a journey which 1s to be deemed, for the purposes of sub- section 32(1), to have been a journey from Captain Maunder's employment by the Commonwealth. For a journey to constitute part of an employee's employment by the Commonwealth by reason of the operation of s.32 of the Act the journey must answer the description of a journey by the employee to his employment by the Common- wealth (irrespective of the place at which the journey commenced) or a journey by the employee from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end). Making explicit that the place of commencement of the journey is irrelevant in the case of a journey to employment and the place of destination irrelevant in the case of a journey from employment no doubt removed from consideration some of the matters that had been the subject of debate under the provisions repealed by the Compensation (Commonweath Government Employees) Act 1971. But a consideration of what was said in The Commonwealth v Wright (1956) 96 C.L.R. 536 1s sufficient to indicate that other difficulties could stand in the way of an employee 15. establishing in the circumstances of a particular case that his journey was one properly answering the description of a journey to or from his employment by the Commonwealth. The obvious purpose of ss. 33 and 34 of the Act, read with ss. 35 and 36, is to relieve an employee from the necessity to establish that his journey falls within the language of section 32 provided he can bring himself within s.33 or s.34. To fall within sub-section 33(1), in the case of a 'journey from the employee's place of employment, 1t is only necessary to show that the journey commenced during the period of one hour immediately after the time when the employee ceased work, an expression which, by virtue of $.36, includes the performance of any act constituting part of the employmentiof the employee. If the journey, although a journey from the employee's place of employment, did not commence during that one hour period and the time at which the journey commenced was the only reason why the journey did not fall within the terms of paragraph 33(1(b), the employee must establish to the satisfaction of the tribunal of fact that, in terms of paragraph 33(3)(b), the journey was made by the first means of transport - (1) that was conveniently available for use by the employee; (i2) that would ordinarily have enabled the employee to commence the journey after the time when he ceased work; and \\ meq 16. (iii) that was of a kind that the employee could, having regard to all the circumstances of the case, have been reasonably expected to use; and that he did not make an earlier journey from his place of employment after the commencement of that period. In speaking of the first available means of transport paragraph 33(3)(6) read in its context is clearly referring to the means of transport first available to the employee after the ,employee ceased work. ) The legislative intention seems to be that, if the employee delays in leaving his place of employment and commencing his journey until after the prescribed period, he must, to obtain the benefit of s.33, show that a means of transport was not available to him during the prescribed period. It was pressed upom us that the reference in paragraph 33(3)(b) to the first means of transport that was | conveniently available for use by an employee is a reference to the first means of transport available to him after the time when he leaves his place of employment with the intention of making the journey. We do not think this is the meaning of that paragraph. Counsel for the appellant submitted that the Tribunal should have held that the means of transport chosen by Captain Maunder was a motor vehicle, pointing to the use of the word "kind" in sub-paragraph 33(3)(b)(11:) supporting this argument. He also submitted that 17. considering the application of that sub-paragraph as in the Tribunal was bound to take'no account of any considerations relating to the capacity or other personal attributes of the employee. We are satisfied that the correct way in which te describe the means of transport chosen by Captain Maunder is to say that the means of transport was to drive 'himself in his own motor vehicle. applying sub-paragraph 33(3)(b)(iii) the Tribunal We are also satisfied that in was required, in accordance with its express language, to have regard to all the circumstances of the case. There 1s no warrant for excluding from those circumstances the capacity or other personal attributes of the employee. any ! motor vehitle was the The Tribunal was "not able to be satisfied or make finding one way or the other that Captain Maunder's + 'first means of transport that was conveniently available for (his) use'" but concluded, in terms of sub-paragraph 33(3)(b)(iii), that Captain Maunder's reasonably have been expected to use. "In my view, 1t could not be said to have been regarded or contemplated as being reasonable that a man in such a state of inebriation would drive or use a motor vehicle. Having regard to all the circumstances of the case, including his inebriation, it could not have been considered as reasonable that he should attempt to go home or to go home by driving his motor vehicle." motor vehicle, in the circumstances, was not one he could 'The Tribunal said:- 18. The question whether 1t was reasonable that Captain Maunder should attempt to go home by driving his own vehicle was a question of fact and we are satisfied that 1t was open to the Tribunal on the evidence before it to reach the conclusion that it did. In the course of argument reference was made to the provisions of sub-section 8(3) of the Act. In the view we have taken 1t is unnecessary to express any view on' the applioation of that sub-section to the facts of this case. \ The appeal is therefore dismissed with costs. de gee FORTS pages are a we a judgment here of the Court : NE 4 12 November, 14%, Pate