Landers v Dawson [1964] HCA 35

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Landers v Dawson [1964] HCA 35

ORDER Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

June 5 Kitto, Taylor, Menzies and Owen JJ.

The Workers Compensation Board made an award in favour of the appellant worker against the respondent employer for the payment of workers' compensation and thereafter stated a case settled by the parties for the opinion of the Full Court of the Supreme Court in which no less than fifteen questions were asked. Some of these the Full Court found it unnecessary to answer, the remainder it answered in favour of the respondent. The facts, as found by the Board, were that the appellant was employed by the respondent in a bakery at Nullawarre, a country town in Victoria. He lived in the respondent's house and, during the summer months, was available for duty at any hour of the day or night when he was required to work by his employer. At the bakery his work consisted of assisting with the dough-making, which was done sometime "after lunch" or "in the afternoon", and with the baking of bread at some later but unstated time. His work also included making morning deliveries of bread to local customers and, on several days a week, to customers at Peterborough, a seaside resort, about fifteen miles away. In the ordinary course of events he was not required for work between the time when he had completed his delivery rounds in the mornings and the time "after lunch" or "in the afternoon" when the dough-making began. It was found also that it was the appellant's practice during the summer months to go for a swim at Peterborough, with the respondent's permission, after he had made his deliveries there and before returning to the bakery where he would later begin his work mixing dough. On the day when he received his injury, he had completed his local deliveries of bread and had then left the bakery at about 10 a.m. to drive to Peterborough in his truck to make deliveries to customers there. Having completed those deliveries at some unstated time he, with the respondent's permission, drove to the swimming pool with some friends and went in for a swim. At about 11 a.m. he slipped or tripped in some way when making a running dive into the water, struck his head and broke his neck. The Board found that "after the applicant completed his deliveries of bread and had set out for his swim he entered upon a venture of his own. His time was his own until he intended resumption of work after lunch. The place of his last delivery was part of his place of employment until he departed from it on his own venture." It appears, although only by deduction from some of the questions asked in the stated case, that the Board was of opinion that the appellant's injury was one which had arisen "out of or in the course of his employment" because of the provisions of s. 8 (2) (a) (ii) and (b) (i) which extend the ordinary meaning of those words as used in s. 5. It should not be necessary to say that this is not a proper way in which to state a case. All relevant findings of fact should be set out expressly and not left to be inferred by the appellate tribunal from the fact that an award has been made or that a question is asked whether there was evidence to support a finding of fact which is not itself set out as part of the case.