STAHMANN FARMS INCORPORATED v WILLMOTT [1988] NSWCA 142

STAHMANN FARMS INCORPORATED v WILLMOTT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

McHuGH, SAMUELS and Hope JJA 18 November 1988, 18 November 1988

[1988] NSWCA 142

WORKERS COMPENSATION — periodic journey — cessation of duties — delay of almost 4 hours before leaving employer's premises — attending party — whether periodic journey is matter of fact and degree — open to Compensation Court to make award.

McHugh JA This is an appeal by an employer against an award of compensation tothe widow and children of Peter Willmott (the worker) who died on 31 January 1986.

The question in the appeal is whether the deceased was on a daily or other periodic journey within the meaning of s7(1)(b) of the Workers Compensation Act 1926 when he received the injuries from which he died.

S7(1)(b) provides so far as is relevant: "Where a worker has received injury on any of the daily or other periodic journeys referred to in par (c)...the worker (or in the case of the death of the worker, his dependents) shall received compensation from the employer in accordance with this Act."

S7(1)(c) describes the daily or other periodic journeys referred to in par (b) of s7(1). The relevant sub-paragraph for present purposes is sub-paragraph (i): "Between the worker's place of abode and place of employment".

In the Workers Compensation Commission the argument for the employer was that the journey of the worker had not commenced from a place of employment within the meaning of the Workers Compensation Act. But in this court the argument has taken an altogether different form. Mr McAlary QC for the employer has contended that the worker was not on a daily or other periodic journey at the time when he sustained the injuries from which he died.

The facts of the case fall within a very small compass. The deceased was employed as a farm labourer by the employer. The evidence indicated that up to thirty other persons were employed on the farm although there may have been fewer employed on the day of his death. His normal working hours were from 7.00 am until 5.00 pm.