Humphrey Earl Ltd v Speechley [1951] HCA 75

High Court of Australia Dixon, McTiernan, Williams, Webb and Fullagar JJ. Humphrey Earl Ltd v Speechley [1951] HCA 75

ORDER Appeal allowed with costs. Order of the Supreme Court set aside. In lieu thereof order that the question in the case stated be answered that the commission did err in holding that the injury sustained by the applicant (the respondent in this Court) was sustained in the course of his employment. Order that the applicant pay the costs in the Supreme Court of the case stated.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 14 Dixon J.

This is an appeal by special leave from an order made by the Supreme Court of New South Wales upon a case stated by the Workers' Compensation Commission. The question submitted by the case stated to the Supreme Court was whether upon the facts proved or admitted the commission erred in law in holding that the injury sustained by the applicant, who is the respondent in this appeal, was sustained in the course of his employment. The Supreme Court decided that the Workers' Compensation Commission did not err in so holding.

The respondent sustained physical injuries in a road accident which occurred at four o'clock or thereabouts on 17th May 1948. This is the injury held to have been suffered in the course of his employment. He was riding a motor cycle from Brookvale to Collaroy. There was a side box on the motor cycle and in the side box was seated a man named Knowles who kept a shop at Collaroy. The respondent was employed by the appellants, who are a company carrying on business at Lidcombe as manufacturers of bacon cutters and scales. The business includes the servicing of the implements supplied to customers. The respondent had recently gone into the employment of the appellants. His duties included the visiting of shops and other places where there were implements provided by the appellants which required repair or attention. At Knowles' shop at Collaroy, a mixed business was carried on. The shop contained a bacon cutter and bread slicer supplied by the appellants which required attention. Knowles had communicated this fact to the appellants and as a result, among the five or six work slips which were handed out to the respondent on the morning of the 17th was one requiring him to attend Knowles' shop at Collaroy. He visited the other jobs first so that that at Collaroy would be the last job of the day. He reached Knowles' shop at Collaroy between half past twelve and a quarter to one. Apparently he took the machine to pieces and sharpened the blades. He worked at it until close upon two o'clock. Knowles had a wife and a daughter, but neither was at the shop at the time and Knowles did not wish to prepare lunch for himself, still less for the respondent. Apparently they had enlivened the work with conversation. At length Knowles raised the question of going out for lunch together. A discussion arose as to the desirability of having a hot fish lunch. According to Knowles' evidence it was his idea that they should go out to lunch, his wife was away, he (Knowles) wanted to have a feed instead of getting the lunch and the respondent was "talking fish". The work at the bacon cutter seems to have been nearly complete. There is a little confusion as to what remained to be done or, indeed, whether anything remained to be done. The learned judge who heard the matter in the Workers' Compensation Commission said there was little work left to be done, whether it was left undone by design or whether it could not be done before they set out in search of the fish lunch. Apparently there was some difficulty in obtaining at Collaroy what they were in search of, although, of course, there were shops at which they might have obtained lunch. According to the specific findings in the case stated the lunch could have been had by the respondent at Knowles' shop or at other shops in Collaroy or Dee Why, but a hot fish meal was not available owing to gas restrictions and to the lateness of the luncheon. The respondent was particularly desirous of having a fish lunch and for that purpose went in company with Knowles to Collaroy and to Dee Why, where also a fish lunch was unavailable. At Dee Why they called at a hotel where they drank beer, the time occupied being approximately ten minutes. They then proceeded upon the motor cycle to Brookvale, which is south of Dee Why, and it was there they obtained the fish for which they were searching. After they had consumed the fish by the roadside the respondent, in company with Knowles, drove the motor cycle back from Brookvale with the intention of returning to Knowles' shop at Collaroy. The respondent's purpose was either to perform further work in connection with the bacon cutter or to collect tools used in its repair. It was while they were returning from Brookvale to Collaroy on the main road approaching Dee Why that the accident occurred in which the respondent was injured. It was specifically found by the learned judge that the respondent's sole purpose of proceeding from Collaroy to Brookvale was to partake of a particular type of lunch which he preferred, namely, fish. But the learned judge found that the injury arose in the course of the respondent's employment with the appellant and the question for decision is whether that conclusion was reasonably open to him upon the facts and the evidence.