Whiting v Brambles Industries Ltd [1976] HCA 51

High Court of Australia Barwick C.J. Gibbs, Mason, Jacobs and Murphy JJ. Whiting v Brambles Industries Ltd [1976] HCA 51

ORDER Appeal allowed with costs. Judgment of Supreme Court of New South Wales (Court of Appeal) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 1 Barwick C.J., Gibbs, Mason, Jacobs and Murphy JJ.

The appellant is the widow of a workman who was killed in a motor accident on 14th June 1973. In proceedings brought by the appellant against the respondent, who was the employer of the deceased workman, to recover workers' compensation, it was held in the Workers' Compensation Commission of New South Wales that the deceased died as the result of injury received on a daily or other periodic journey between his place of abode and place of employment. On appeal the Court of Appeal (by a majority) held that this finding could not be sustained and set aside the award of compensation which had been made in favour of the appellant.

The facts of the case are not in dispute. Although the respondent's depot was at Glebe the deceased was ordinarily required to carry out the duties of his employment at the brewery of Toohey's Ltd. at Auburn. The respondent had a contract with Toohey's Ltd. to provide forklift driving services at the brewery, and the deceased was one of a number of men employed by the respondent to drive the forklift vehicles. His normal hours of work were from 6 a.m. to 4 p.m. On 12th June 1973 the employees of Toohey's Ltd. who did the production work at the brewery had gone on strike. Until they resumed work there was nothing for the forklift drivers to do. A meeting of the workers who were on strike was arranged for 9 a.m. on 14th June for the purpose of deciding whether and when work would be resumed. In accordance with normal practice, the forklift drivers attended at the brewery on that day to be ready to start work immediately if the strikers returned to work. The respondent expected its employees to follow that practice. The respondent also expected—required would seem to strong a word—the forklift drivers to attend at the depot at Glebe if, because of a strike, there was no work for them at Auburn. In practice drivers sometimes went home rather than to Glebe, and there was evidence that if they went to the depot they would only stand by, and not work, although by attending they would entitle themselves to full pay for the day. The deceased was neither on strike nor a member of the union to which the striking workers belonged and was not entitled to attend the meeting arranged for 14th June. He arrived at the brewery at about 9 a.m. on the morning of that day dressed for work. He was ready to man his forklift vehicle if the meeting decided to resume work immediately. In fact it was decided that the striking workers would go back to work on the following day. The gates of the brewery were closed at all material times on 14th June and the meeting was held outside them. For this reason the deceased did not enter the premises of the brewery and he never got as far as his forklift vehicle. At the conclusion of the meeting the forklift drivers did not go to the respondent's depot at Glebe, although it was pay-day. Apparently they wished to show their sympathy with the striking workers. It is unlikely that it mattered to the respondent whether they went to the depot or not. In any event arrangements were made by the respondent for the forklift drivers to be paid at Auburn rather than at Glebe and the deceased remained outside the brewery until he was paid. Then, at about noon, he set out on his journey home. It is not now disputed that he was travelling to his place of abode when he sustained the injuries that caused his death.