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. On the day in question a party was held in recreation quarters at the farm for a fellow employee who was leaving the service of the employer on that day. The employer made available the recreation quarters for the holding of the party. But it did not otherwise contribute to the party. The employees brought their own liquor, alcoholic and non-alcoholic, and their own food. The party commenced about 5.00 pm. Around 7.00 pm there was a presentation to the worker who was leaving. Most of the employees attending the party left at about that time. The party continued on until some time before 9.00 pm. The deceased worker stayed back until about 9.00 pm. He then left the farm on a direct route to his home and suffered fatal injuries during the course of his journey. A reading of his blood showed an alcohol level of.177. There was evidence that he had taken a six pack of beer to the party and had drunk other alcohol as well. 2 UNREPORTED JUDGMENTS It is upon these facts that Mr McAlary contended that the deceased worker was not on a daily or periodic journey at the time he received the fatal injuries. In Miller Hotels Pty Ltd v Tunks, [1973] WCR 154, this Court recognised that whether or not an employee, who has stayed back on the premises after finishing work, was on a daily or periodic journey from his place of employment when he sustained injury is a question of both fact and degree. In that particular case a casual barmaid ceased duties at a hotel at about 10.30 pm. She stayed on at the hotel for three and a half hours during which she had food and alcohol and engaged in conversation with fellow workers at the hotel. She then left the premises and, while driving home, sustained injury. This Court upheld an award in her favour. Reynolds J, who gave the main judgment, said at 155: "There was in my opinion evidence that she had left her place of employment on a journey to her place of abode and there was evidence also that the journey was of a character which could be described as periodic. No doubt there can be cases, as was conceded by counsel for the respondent, where, having regard to the lapse of time and the conduct and activities of a worker after the cessation of duties and before the commencement of an alleged journey, it would not be open to a tribunal of fact to hold that the journey was one to which s7 applied. This, however, is not such a case and it lies in an area where it was a matter of degree and therefore of fact for the judge." It seems to me that similar considerations apply in the present case. the worker was on the premises for almost four hours after the cessation of duties but it was open to the judge to find that nevertheless he was on a daily or other periodic journey. Mr McAlary conceded that he left his place of employment within the meaning of the Act and that he was on his way to a place of abode. It is well established that an employee does not lose the benefit of the provisions of s7(1)(b) merely because he makes a journey at a different time each day. Mr McAlary placed great reliance on a passage in the judgment of the High Court in Whiting v Bramble Industries Ltd (1976) 134 CLR 464 at 468 where the High Court said: "The journey must have been along a route between two places and the worker must be travelling for some reason connected with his employment. Speaking generally it might be enough to say that he must be travelling between his place of residence and his place of employment for the purpose of commencing work or of returning to his home after his work has finished." Mr McAlary submitted that, by reason of the time which had elapsed and the amount of alcohol which the deceased had consumed, he was on a frolic of his own, that his presence on the premises at the time he left had nothing to do with his employment, and that his journey from the farm could not be characterised as his daily or other periodic journey. As I have indicated I am unable to agree with this submission. In Whiting v Bramble Industries Limited, their Honours went on to say: "The fact that he normally made it at a different time of the day is not material. A journey may be periodic notwithstanding it takes place at a different time each day as in the case of a man who works variable hours. A man who leaves home later than normal to go to work does not by reason of his unpunctuality disentitle himself or his dependents to compensation under s7(1)(B)." This is not a case of a worker leaving the premises at a time which was totally unconnected with his employment. For example in a case where an employee had gone to his employer's premises for a purpose unconnected with his employment URJ STAHMANN FARMS INCORPORATED v WILLMOTT (McHugh JA) 3 and then returned to his place of abode, the journey home would not answer the description of a daily or other periodic journey. But here the employee had been on the premises until 5.00 pm for the purpose of his employment, he had to leave the premises for the purpose of returning to his home and he went on his ordinary route. The only difference between this and other days was that a number of hours had elapsed since his duties had ended. It could hardly be argued that if he had stayed for an hour or so to chat with his workmates or, as Hope JA suggested in argument, to have a cup of tea, it could be contended his journey was not his daily or periodic journey. It is all a matter of fact or degree, and it was open to the learned member of the Commission to make the finding which he did. In my opinion there was evidence upon which the finding could be made. Mr McAlary then submitted that the learned judge had misdirected himself. He referred to two passages in his Honour's judgment where his Honour dealt with the question of whether the attendance of the worker at the party was incidental or coincidental with his employment and whether the conduct and activities of the worker had done anything to destroy the character of the periodic journey. Mr McAlary submitted that these matters were irrelevant to the question whether or not he was on a daily or periodic journey. However, his Honour was dealing with an argument which was raised by counsel who then appeared for the employer to the effect that the farm lost its characterisation as a place of employment within the meaning of the Act by reason of the conduct and activities of the worker. It is not open in this Court to the employer to complain about matters which it relied on before his Honour but now abandons. Mr McAlary also relied on three other matters. In the course of his judgment, the learned Judge said that the delay or lapse of time was not unreasonably long. Secondly, he said that the activities of the deceased, during the party were unremarkable. Thirdly, he said that he was not persuaded that the alcohol consumed by the deceased at the party contributed to his injury and death. I agree with Mr McAlary that these matters are ordinarily not relevant to the question whether or not a worker was on a periodic journey. But it may be that the question of delay or lapse of time is in some cases a relevant factor. However that may be, if these matters were irrelevant, as Mr McAlary contends, they simply raised unnecessary hurdles for the respondent to surmount. Accordingly, in my opinion there is nothing in his Honour's judgment which amounts to a legally irrelevant misdirection. In my opinion the appeal should be dismissed with costs. Counsel for the Appellant: F Malary QC and M Crimmins Solicitors for the Appellant: Hickson Lakeman and Holcombe Counsel for the Respondent: B Gross QC and R Herrington Solicitors for the Respondent: Carroll and O'Dea