IN THE FEDSRAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON No. G237 of 1982 were ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN : THE COMMONWEALTH OF AUSTRALIA Applicant AND: ROBERT GLEN STADDON Respondent CORRIGENDA Amendment to the judgment of his Honour Mr. Justice Fox of 15 February 1984 - On page 4, line "(1922)". 13, substitute "(1969)" for TO) (I.H. PHILIP) Associate to Fox J. 1 March 1984 Adwianitatrative Law - Commonvealth Emslioyees' Compensatzron - Saitor om shore leave - Whether intury arose in the course of Caomemmearion (Commonvanith CGovernmeny Emniovess' Act 147i - Dade 4 —— TUE COMMONWEALTH OF AUSTPALTA v, 2QEREPT GLEN NO, $237 OF 19A2 way + OX FT. 15 Fepruary 1L9f4 IN THE FEDERAL CURE CF AUSTRALTA NEW SOUTH WALES DISTRICT PEGISTRY GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN : THE COMMONWEALTH OF AUSTRALIA Applicant AND: ROBERT GLEN STADDON Respondent ORDER JUDGE: Fox J. DATE OF ORDER: 15 February 1984 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. ~ 2. The matter be remitted to 6the) Deledate of the Commissioner to determine compensation in accordance with the reasons herein. 3. Sub-paraaqraphs (ii) and (111) of paragraph (b) of the Tribunal's decision be set aside. IN THR FEDERAL COURT OF ATSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G237 of 1982 GENERAT, DIVISIAy QN APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL RETWEEN : THE COMMONWEALTH OF AUSTRALIA Applicant AND: ROBERT GLEN STADDON Resrondent CORAM: FOX J. DATE: 15 February 1984 (EX TEMPORE) REASONS FOR JUDGMENT FOX J I have reached a conclusion in this matter. = hope it ghows no disresvect to the careful and helpful arguments that counsel have raised if I deliver my reasens forthwith. and if concerns the application of the Compensation (Commonwealth The applicant was at the relevant time an able seaman was in Jakarta, in iD ot Melbourne whil un 's wm H.M.A. io erving iP) yordy7111 nissiran. iy O] a desert i) iy done a ia. onwhat hase Db ( 1D g When on shore leave he was seriously injured when using » a b c ct a at a large e¢ewimming pool complex. He had »sreviously swum a an 4 da p- stance of nearly a mile in the extensive surrounding pool. The Tribunal has found that the applicant was iniured in the rourse of his employment within the meaning of s.27(1) of the Act. It is submitted on behalf of the apvellant that this conclusion was not supported by th evidence. Findings of orimary fact made by the Tribunal are not under challenge. [t is a question whether the conclusions reached, and particularly the ultimate conclusion just mentioned, are supported by those facts. These facts are carefully set out in the reasons aiven by the Tribunal ane I shall not reveat them. Four paragraohs containing comments and conclusions have been the particular subject of attention and I ser those out. They are paragraphs 11, 12, 13 and 14: a . Obviously there would be difficulty in viewing 1 conceivable activities of a sailor on shore leave a foreign port as arising in the course of his ployment. But having regard to the requirements of val Orders and the Service's insistence on fitness, can -I th2nk be seen that this man was doing mething reasoradly incidental to his employment in ing to increase or mazrntain hie level of fitness bv in strenuous swimming and vrelaxing vidorous , after an arduous svell of duty ina torrid mate aboard a markediv uncomfortable vessel then in oreian port. x woBpware SSBRE ity Q 5 ad S Q PAN Dd Qa Aid wf ta mE o's ~D S fam fecendly, I am oersuaded that the goodwill and owing the flaad' asvects of the fleet's vovace are 'sh not tc be considered as in fact, restricted to the oresence and cneration of the shies as a flest: but to ye exemolified also bry the odearinc. disecisline ara friendly behaviour te Inéones-ans of 'their craevs when ashore (as emphasized repeatedly in instructions given aboard ship). The applicant was taken to and required to remain in Jakarta, he was required and expected to keen fit, he was required and expected to show nimself when ashore to be 'an ambassador' for his.country, and as part of that process he was authorised to qo ashore (obligatory in uniform) and he was (inferentially) authorised to engaqe in reasonable svorting activities while there as part of his duty to keep himself fit for service aboard a vessel of known oppressive shipboard livirg conditions which was then serving ir the tropics. I find as a fact that his duties were not only those svecific to his) rank and technical qualifications; but also included those germane to each crew member of the fleer zn Jakarta on this voyage of 'showing the flag' and carrying goodwill to the country of Indonesia, in his own small but not unimportant way, through his appearance in uniform and manly friendly conduct among the country's residents. 13. If as I believe, 21t could be considered reasonably related to the exigency occasicred by his duties, 'for the applicant not only as part of the so0ecial purpose of the vovage to move around in uniform in conventicnal activities among the residents of Jakarta, but in pursuit of his need to keep f1t by undertaking the strenuous exercise involved in swimming the best part of a mile, it may I believe be taken as reasonably incidental to that activity also toa have relaxed by recourse to che chute available at the swimming complex. I. consider the whole of his activities, be 1t noted in the company of his fellow sailors, at Jaya Ancol, a reasonable consequence af the circumstances in which he was solaced throuch 'the performance of his duties; and they oucdht not he considered as the voursuit of 'a surpose of his own' 'Humphrey Earl Limited v. Speechliv 84 CLR at 133-134), but as a matter of fact, things, haopenings arising in the course of his employment. - 14. Having come to the conclusion that the facts establish that the intury suffered by tne acplicant was incurred during activities af such a nmatrre as in the ciycumstances were reasonabiv znezdenztal to his employment, and indeed arose in the course of his employment. I consider the applicant entitled to compersation in respect of it and that f= should therefore set aside the Determination the subrect of Rel 1D vant facts anpear iivectly or undizectly from what 15 se tinted in those varagraphs. The question of when an injury arises in the course of employment has been the subject of endless litigation for many years and there have been a great number of cases dealing with the topic. As I think has been commented upon, in some of the more recent cases there developed a tendency to give the words a more liberal meaning, in the sense of a wider construction than > rf p loga ey wv p oO YP) ia) on Et) t+ bo oO in) a ct QO hh ie) rs A guide to the resolution of the question in this case which I have found helpful is that of Sir Garfield Barwick in Danvers v. The Commissioner of Railways of Mew South Wales (199) 122 C.L.R., at pp.536-537. To that reference IT might add one to the the judgment of Mr. Justice Windeyer in the same case at op.544-545. Also of assistance in the present case are the w & fan D ro) "NS ps ct He iD uwut v @ by Sir Garfield Parwick to which might be added the deczsion of the High Court 1n The Commonwealth v. Oliver (1962) 107 C.L.R. 353. The question in this case. lize many similar cases, 1s not an easy ore and the conclusion 1s a marginal cne. However, ta am imoressed by the reasons ser out by the Tribunal, and the facts referred_to therein, in supvort of the conclusicn that the ] | = '3 in p yp Ss \4 a D B + om iD a5 mn 'D Pp) rh D'D ja ps) '4D+ A fundamental matter whith seems Er me £2 set a context for the whole 1s that the injured man was serving 1n the navy on a ship then in a foreign port and that the ship was there to create a favourable impression on the part of the seople of the country, both as to the existence and seeming efficiency of the Australian Navy and as to the quality of its versonnel. Whil o He] a foreign port, as I understand the facts as found, the di wt cipline is relatively tight. The situation is not at all like one where thers 1s a shore-based unit of the navy and satlors attend there day by day, having their homes in a suburb ct » of some capital city. They are given short verlods of leave. They are given it on certain understandings, made pretty plain by the officer commanding the ship. as to their benaviour and as 79 thelr dress, and other personal matters into which the navy in many other circumstances would not intrude. The Leave can he cancelled and the sailors recalled to the ship at any time, and with the barest minimum of notice. As I understand it. tne injured person in this case came back to the ship each night-time and set off on his leave in Jakarta during the day. At the varticular moment when nis injurv occurred he was e ip) or ding a chute, which ene is entitled to assume was a joyful activity; whether or not it involved much physical exercise, I do not know. He was, however, a verson who had a varticular skill at swimming ard varticinated in comoeetitive swimming. He belonged to a Service 'not alone in this regard) which required a tsip) rt> B) a D + ie)sa My Pi wl tich daeqvee of shysical fitnes a > 2 O22 c r called upon. perhaps at short notice, to go cn active service. z the navy, not unnaturally, swimming receives varticular emphasis. There is more than one reason why the injured person in the oresent case should want to go for a swim, because the ns undisouted evidence is that the shiv itself. particularly ina tropical area, was very uncomfortable indeed, at least for those whose quarters were below deck. From the point of 'view of the officer commanding the ship I have no doubt that he wanted to encourage vyeople to goon shore on leave and obtain their relaxation and indulae in swimming of one sort or another which would give them some relief from the climate of the ship and which would verhaps have other advantages such as those T have already mentioned. It seems to mé, on the whole, that the tests stated in "5 bt the cases to which I have veferred., and particula QA y those set out in Danvers case, are satisfied in the oresent a a ir) iD A point was made of the fact the injured sailor was in fact going down a chute at the time of the injury and this was, on any view, catering for his own pleasure. T do not think one can divorce that sort of activity from the use of the swimming comolex as a whole, and it is not at all foreign to the vsurposes T have been mentioning that he should have some enitoyment and that there should he some incidental activity for nis pleasure. Therefore I am of the view that the appeal should fail. It 153 agreed that para. (b), sub-para. (ii) should be set aside and it seems to me, although it is a trivial matter that (i1i) should go with it. The orders I will therefore make are that the appeal should he dismissed with costs. that the matter should he remitted to the Delegate of the Commissioner to determire compensation in accordance with my conclusions. I formally set aside sub-paras. (ii) and (iii) of para. (b) of the Tribunal's decision of 19 November last. IT certifv that this and the six (6) preceding pages are a true copy of the Reasons for Judament herein of his Honour Mr. Justice Fox.