Commonwealth v Oliver [1962] HCA 38

High Court of Australia Dixon C.J. Menzies and Owen JJ. Commonwealth v Oliver [1962] HCA 38

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 1 Dixon C.J.

Arthur Charles Oliver, the respondent to this appeal, is employed at the Government Aircraft Factory at Avalon as a progress chaser. The hours of work are from 8 a.m. to noon and from 12.30 p.m. to 4.30 p.m. The luncheon break of half-an-hour is not counted as a period of employment in calculating the forty-hour week. During a luncheon interval on 5th May 1961 he tore the muscle of the calf of his right leg. The injury was not serious but it needed some medical treatment and it meant an absence from work for a fortnight for which Oliver lost his pay. He claimed compensation under the Commonwealth Employees' Compensation Act 1930-1959 Cth but the Delegate of the Commissioner under the Act disallowed his claim. He appealed under s. 20 to the County Court at Melbourne and there his appeal was allowed. Now in turn the Commonwealth appeals to this Court. The amount involved must be small but presumably, notwithstanding the traditional difficulty of settling by judicial authority guiding principles which will make the application of the phrase "arising out of or in the course of his employment" either simple or certain, it has been thought that there is sufficient hope of the case producing a useful precedent to justify an appeal. The injury was sustained while Oliver was taking part in what was dignified by the name of a cricket match on the concrete apron in front of a hanger. He tripped over a domed metal disc in the pavement which was intended to serve as an earth point for tankers or for aircraft during refuelling. It was the practice for Oliver to leave his work a few minutes before 12 o'clock, go to the canteen, obtain the lunch of three or four men as well as his own and bring it to the hangar. The cricket match was an organized affair going on at the lunch interval from day to day. According to the findings he came out, distributed the luncheon packets and took his position before eating his own lunch. A ball thrown in rolled towards him, he walked forward to pick it up and he tripped over the earthing point. There are few additional facts that matter. The most important is that having regard to the shortness of the luncheon interval, the distant situation of the aircraft factory at Avalon and the existence of the canteen, employees would, as a matter of course, remain on the premises during the interval and it was a recognized practice to play some game during the interval. There was, however, a notice some five or six years old exhibited saying that games of any description must not be played on concrete areas in front of hangars. This had long been ignored. About two years before the accident a safety bulletin had been issued by an officer called the plant and safety engineer warning employees of the danger of playing games on hard surfaces and asking for co-operation. These neglected notices or warnings cannot matter on the question whether the personal injury which Oliver suffered was caused by accident arising in the course of his employment by the Commonwealth. And that appears to me to be the only issue. Section 9 (1) of the Act provides the two well-known conditions as alternative foundations of liability; one is enough and we may ignore the suggested possibility of the accident arising out of the employment. It has now been made clear by judicial decision that, apart from cases where the question whether an incident of cardiac or other disease may be regarded as an employment injury, the question whether an accident occurs in the course of the employment is independent altogether of the question whether the employment contributed causally to the accident. In the course of the progressive enlargement of the conditions which, under the Workers' Compensation legislation, have provided the limits upon the description of injury by accident that is compensable, probably the most striking, as well as perhaps the earliest, was the substitution of the requirement that the accident should arise either out of the employment or in the course of the employment for the long standing and notorious expression "arising out of and in the course of the employment". This substitution was made in Western Australia much earlier than in New South Wales or Victoria. The existence of the double condition had necessarily made it natural to look for a connexion between, on the one side, not only the nature of the employment but also the fulfilment of its duties and the pursuit of its incidents, and on the other side, the occurrence of the accident or the sustaining of the injury. This habit of thought was not completely broken by the change of "and" to "or": for the instinctive feeling persisted that the accident or injury must be in some measure occasioned by or related to the employment. At an early stage, in a Western Australian case Pearson v. Fremantle Harbour Trust [1] , this Court took a definite step towards ridding the notion of "course of" from prepossessions in favour of connexions depending on "occasion" or "cause". But the conception of what sphere of activity "course of employment" covered was somewhat restricted. It had been realized that the words covered not only the performance of duties and the pursuit of the ends laid down for the employee but also things which were but adjuncts or incidents growing out of the employment. Lord Loreburn some years earlier had said of the matter: "Everything, of course, must depend upon the nature of what he has to do, but allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act. A man may be within the course of his employment not merely while he is actually doing the work set before him, but also while he is where he would not be but for his employment, and is doing what a man so employed might do without impropriety.": Low or Jackson v. General Steam Fishing Co. [2] . The field covered by the general conception of what is incidental, ancillary or consequential to work but yet sufficiently within the sphere of the man's employment to make it proper to say that when he is within it he is in the course of employment has doubtless widened its practical boundaries with the enlarged conception of what belongs to the factory or other organized industrial unit in the amenities and welfare of the members of the staff or labour force. It is a long time since in St. Helens Colliery Co. v. Hewitson [3] a coal mining case, Lord Wrenbury said: "The employment may be to do some defined manual work, say, hewing coal, but the accident need not arise when the man is actually using his pick. He may be going down in the cage. He may be resting between shifts. He may be taking a meal. He may be merely standing by, waiting for the next job. All these, and such as these, are not "the employment" but are incidental to the employment. The man is in the course of his employment—is engaged in his employment in all such cases. "They also serve who only stand and wait". In every case the facts have to be ascertained and discrimination made between the time during which or the place at which the employment is and those during or at which it is not being carried on" [4] . The list Lord Wrenbury gives of course well illustrates his meaning but nowadays would be considered to be somewhat narrowly conceived. Lord Buckmaster, in John Stewart and Son (1912) Ltd. v. Longhurst [1] protested against what he called the error of an effort "to obtain from decided cases a fixed standard of measurement by which to test the meaning of the words in the statute "in the course of" and "arising out of" employment. Some of the reported cases" he said, "appear to me to have made the same mistake and to have attempted to define a fixed boundary dividing the cases that are within the statute from those that are without. This it is almost impossible to achieve. No authority can with certainty do more than decide whether a particular case upon particular facts is or is not within the meaning of the phrase" [2] . But at the period of which I have already spoken a particular case was decided by this Court upon particular facts and it is said for the appellant Commonwealth that the particular facts so closely resemble those of the present case that there is no room for distinction, and that by the decision it is judicially established that the facts of the present case are outside the meaning of the phrase "in the course of the employment". The decision is Whittingham v. Commissioner of Railways (W.A.) [3] . In a way, the facts are surprisingly close. The employee Whittingham—a machinist in the Commissioner's workshops—worked a forty-four-hour week, the daily hours being worked from 7.30 a.m. to 11.54 a.m. and 12.36 p.m. to 5 p.m. with a luncheon interval of forty-two minutes which was not treated as time of duty. There was a yard of undefined but apparently considerable size and in that employees played cricket in the luncheon interval. Whittingham, having eaten his lunch a quarter of an hour before work resumed, walked about fifty or sixty paces in the yard. When he was some thirty yards from the players he was hit by a cricket ball and injured. A majority of this Court (Rich and Starke JJ. and myself, Evatt and McTiernan JJ. dissenting) decided that Whittingham could not recover compensation. The dissenting judgment of Evatt J. was put on the ground that the accident arose out of the employment, a view which I still find myself unable to accept, unless first it be held that it arose in the course of his employment. But McTiernan J. placed his dissent definitely on the ground that the "course of the employment" went on over the luncheon interval. His Honour said: "In the circumstances of this case I find it impossible to mark any point of time in the appellant's "lunch time" when the course of the employment terminated. The alternative conclusion would appear to be that when the appellant finished his lunch in the workshop and began his walk, a gap occurred in the course of the employment which was due to subsist for about sixteen minutes, but when the whistle sounded at 12.54, the course of the employment would have been restored" [1] .