INVERELL SHIRE COUNCIL v LEWIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 3 August 1992, 9 December 1992 [1992] NSWCA 114 WORKERS COMPENSATION — whether injury sustained "in the course of" employment. The worker was temporarily living in a caravan park while attending a training course away from his home. He was shot and injured outside working hours while on a social visit to another caravan in the park. The trial Judge held that his injuries arose in the course of his employment and awarded compensation. On appeal: held (1) The liability of an employer for injury sustained by a worker "in the course of" his or her employment depends on the existence of a temporal relationship between the employment and the injury. (2) The time spent by the worker away from his home for the purpose of attending the training course constituted one overall period or episode of work. Hatzimanolis v ANI (1992) 173 CLR 473 followed. (3) The employer had induced or encouraged the worker to reside in the caravan park during his course and the injury occurred in that place while he was doing something reasonably incidental to his temporary residence there. (4) Accordingly the worker's injuries arose in the course of his employment. Clarke JA I agree that the appeal should be dismissed generally for the reasonsgiven by Handley JA. Handley JA This is an appeal by the employer from an award of compensation madeby Manser CCJ in favour of the worker. The appeal to this Court is limited to questions of law. The worker was shot and seriously injured in a caravan park at Karuah Jetty near Newcastle at about lam on 24 November 1988. He was an apprentice plant operator employed by the Council and had been sent by his employer to attend a course at the Hunter Plant Operator Training School at Raymond Terrace. The worker normally lived at Ashford near Inverell. The employer arranged temporary accommodation for the worker at the caravan park for the duration of the course. Another apprentice employed by the Council who was attending the same course was also accommodated at this caravan park. Apart from his obligation to attend the course the worker was free to spend his time as he chose. On the evening of 23 November the worker and other young people of both sexes who were staying at the caravan park were engaged in various social activities. After a barbecue meal during which drink was consumed the group left the caravan park to go swimming and further alcohol was consumed. Later further food was obtained and the group then adjourned to the caravan of a Miss Davis for the purpose of having some coffee. About | am the brother of Miss Davis approached her caravan and demanded that the young men withdraw. An angry scene followed which climaxed when Mr Davis began firing a rifle he was carrying. The worker was wounded four times, and as a result of his injuries became totally incapacitated. The Judge found that there was nothing in the worker's behaviour that evening or earlier that had in any way provoked this attack. Although it was late, the lateness of the hour and the conduct of the group of young people in the caravan could not reasonably be said to have increased the risk of such a murderous 2 UNREPORTED JUDGMENTS attack. The Judge found that what the worker had been doing at the time was incidental to his residence at the caravan park. Accordingly he concluded that the worker was in the course of his employment when injured being at a place where he was required to be by the employer and engaged in activities which were reasonably incidental to his location at that place. Since the decision under appeal the High Court has given judgment in Hatzimanolis v ANI (1992) 173 CLR 473 where it redefined the principles which determine when an employer is liable to compensate a worker for injuries received during intervals between work. The essential facts in this case were that the worker was living in a public caravan park a long way from his home. He was there so he could be close to Raymond Terrace where he was receiving practical training in connection with his apprenticeship. His attendance at the Training School and his accommodation at the caravan park had been arranged and paid for by the employer. On the other hand the worker's injuries were inflicted by a member of the public who had no relationship with the employer and the attack occurred in the caravan occupied by Miss Davis who also had no relationship with the employer. At the time and for some hours previously the worker and the other young people had been engaged in what Mr Poulos QC for the employer called "a party". The liability of an employer for injury sustained by a worker "in the course of" his or her employment depends on the existence of a temporal relationship between the employment and the injury. See Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556-557, 559, 572, and 575; and Bill Williams Pty Ltd v Williams (1972) 122 CLR 146 at 153, 154-5, 158. There is no requirement in such a case that the employment should have any causal connection with the injury. In a series of decisions culminating in Hatzimanolis v ANI the High Court has expounded and developed the test originally enunciated by Dixon J in Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29 that in order to arise in the course of employment the injury "must happen while the employee is doing something which is part of or is incidental to his service." In Hatzimanolis Mason CJ, Deane, Dawson and McHugh JJ in a joint judgment reviewed the earlier High Court decisions and said at 482: ".. the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment..." The new principle was formulated at 483 as follows: "... there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work... where... the whole period of the undertaking constitutes an overall period or episode of work. Where for example... an employee is required to go to a remote place and live in accommodation provided by his or her employer... until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location..." URJ INVERELL SHIRE COUNCIL v LEWIS (Handley JA) 3 There was no dispute that the worker's attendance at the training course was part of his employment for relevant purposes. His injuries were sustained during an interval between periods of training while he was in the caravan park where he was being temporarily housed by the employer. The joint judgment in Hatzimanolis includes a further statement of principle at 484: "... An interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. " The findings of the trial Judge demonstrate that there is no question of "gross misconduct" in this case. The employer had induced or encouraged the worker to reside in the caravan park during his course and the injury occurred in that place. Although the employer did not induce or encourage the worker to visit Miss Davis' caravan that evening to have a cup of coffee in the company of others, I can see no basis for limiting the principle in this way. Neither the employer nor the Training School attempted to occupy the time of the worker and his fellow apprentice in the evenings. The course lasted nine weeks with thirty eight hours of training and practical work each week. The worker and his fellow apprentice were permitted to return home in the Council's motor vehicle on four weekends during the course. The employer must have contemplated that the worker would spend his other weekends and his free time in the evenings in and around the caravan park in the company of other persons of his own age. Social visits to other caravans in the park such as that occupied by Miss Davis were a reasonable and foreseeable incident of his residence in the park. The joint judgment specifically approved the decision in Danvers v Commissioner for Railways (1969) 122 CLR 529. Their Honours also said at 485 that "it is difficult to accept" that Goward v The Commonwealth (1957) 97 CLR 355 would be decided differently today. The worker in Danvers died when a fire broke out in the van in which he was sleeping in a remote camp provided by the employer. The injury occurred in "the particular place" where the worker had been encouraged to sleep close to his work. In Goward on the other hand the worker was killed when he was struck by a train near his camp. He was not at the camp itself, this being "the particular place" where his employer, the Postmaster General's Department, had encouraged him to reside while he worked as a member of a linesmen's gang in a remote location in Western Queensland. Moreover the employer had not encouraged the deceased worker to undertake "the particular activity" outside the camp in which he was engaged when he was killed. These facts no doubt explain why the case would be decided the same way today although the dependents' appeal in that case was only supported on the basis that the death of the deceased arose out of his employment. It has long been established that injuries caused by a deliberate assault may be received in the course of a worker's employment whether the assault was committed by a fellow worker by a stranger or even by a virus. See Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30, Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 and Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 584. See also The Department of Public Works v Majcher (1954) 28 WCR 4 UNREPORTED JUDGMENTS (NSW) 53 (FC). No relevant distinction can be drawn for present purposes between injuries deliberately inflicted and those received by misadventure. In this case the worker was injured while he was at "the particular place" where his employer had encouraged him to stay, and while he was doing something that was reasonably incidental to his temporary residence there. Accordingly in my opinion Manser CCJ did not err in law in finding that the worker's injuries arose in the course of his employment. This result may seem to some anomalous or even bizarre. The worker received his catastrophic injuries as the result of the actions of a deranged member of the public because he was present with Miss Davis and others in her caravan. Another young man sitting next to him may have received similar injuries but if the caravan park was his home he would only receive the invalid pension. The risk of injury that materialised to this worker had nothing to do with his employer or his employment. It was a risk that the worker and others faced as members of the community. This Court is nevertheless compelled to reach its result because of the interpretation that the High Court in Hatzimanolis v ANI and earlier cases has placed on the language of the Workers Compensation Act which entitle the worker to compensation for injuries arising "in the course of his employment". This interpretation has expanded the meaning of these simple words far beyond what might be thought to be their ordinary and natural meaning. However this Court is bound to apply the existing law and any change in that law is a matter for the Parliament. The appeal fails and should be dismissed with costs. Sheller JA I have had the benefit of reading the judgment prepared by Handley JA. His Honour has set out the facts and there is no need for me to repeat them. The respondent sustained injury between periods of actual work. The question for decision is whether the injury was within the meaning of s4 of the Workers Compensation Act 1987 "personal injury arising out of or in the course of employment". The expression "in the course of', used disjunctively, directs attention away from the need for some causal relationship between employment and injury to the consideration of whether the activities engaged in by the worker at the time of injury were incidental to his employment; The Commonwealth v Oliver (1962) 107 CLR 353 at 355-6. At 356 Dixon CJ quoted a passage from the speech of Lord Loreburn in Low or Jackson v General Steam Fishing Co Ltd [1909] AC 523 at 532: "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 scope 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." His Lordship went on: "Tt is always a question to be solved by good sense on the facts of the particular case, and not much help can be given by attempts to formulate in more precise language the meaning of the words used by Parliament." In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at 294 and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133 Dixon J suggested as a test for such cases inquiring whether the worker was doing something which he or she "was reasonably required, expected or authorised to do in order to carry out his (actual) duties". URJ INVERELL SHIRE COUNCIL v LEWIS (Sheller JA) 5 The cases since 1937 have taken the law beyond this test if, with the inclusion of the words "in order to carry out his duties", it is to be treated as definitive. Such was the view of Mason CJ, Deane, Dawson and McHugh JJ in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 479-481 although Toohey J in a separate judgment "would retain the words 'in order to carry out his duties', whatever their imperfections." (490). The test applied literally would, I think, deny recovery in the present case, unless a fictitious finding were made that the respondent was together with others in the caravan of Miss Davis "in order to carry out his duties". In the joint judgment in Hatzimanolis, at 402, their Honours said: "A finding that a worker was doing something 'in order to carry out his duties' at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated in the recent cases, particularly the decisions of this Court in The Commonwealth v Oliver and Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529." In undertaking the task of reformulation, their Honours referred to some particular features of the cases. (a) Injury suffered in an interval between periods of actual work has been treated in many of the cases as within the course of employment if "the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way" (482). Later in the judgment their Honours used the expression "inducing or encouraging the employee to spend the interval or interlude at a particular place or in a particular way" (484). Toohey J, speaks of acts which the worker may not be required to do but may be allowed to do (490). Examples are lunchtime recreation at the worksite (The Commonwealth v Oliver, particularly 363-4 per Menzies J) or sleeping in mobile worksite accommodation (Danvers v Commissioner for Railways (NSW)). Recreational activity away from the worksite and the control of the employer may be in the course of employment; Commonwealth of Australia v Lyon (1979) 24 ALR 300. (b) When injury is suffered in an interval between periods of actual work, a distinction between what is compensable in the case of a worker employed at a site remote from his home and what is compensable in the case of other workers is that in the former case more depends on the characterisation of the period of time during which injury occurred than the employer's attitude to how the worker spends his time during the interval. "The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much on the employer's attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees........ There are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited 6 UNREPORTED JUDGMENTS time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality." Hatzimanolis at 483. It follows that when a person, such as the appellant in Hatzimanolis, has been taken to a remote part of Australia and has there performed work, and been housed and fed there for the duration of employment, the course of employment will continue beyond the hours during which the worker is engaged in his actual work and in travel to and from work to the time when he is eating, sleeping and enjoying recreational activity. But characterisation of the period during which injury occurs is not necessarily decisive. The employer's attitude to how the worker spends his time during that time may be significant. In Hatzimanolis the employer argued that it did not follow that the worker was in the course of his employment "during the whole of the time" that he spent in the Mt Newman area. Their Honours said: "This contention is correct because the appellant would not necessarily be in the course of his employment while engaged in an activity during an interval or interlude in his overall period or episode of work if ANI had not expressly or impliedly induced or encouraged him to engage in that activity during that interval." (485) Reference was made to Goward v The Commonwealth (1957) 97 CLR 355. In that case the Court upheld a finding that a linesman employed by the Postmaster General, living in a camp as an incident of his employment, was not killed in the course of his employment when the evidence disclosed no more than that he had been struck by a train on a nearby railway line some hours after the cessation of actual work. The worker was killed on a railway line close to the campsite, and between the campsite and the railway station whence;letters could be sent by trains which stopped on the way to Brisbane. The worker wrote regularly to his wife. A goods train bound for Brisbane came and departed at about the time when the worker was killed. In Hatzimanolis their Honours said that it would be difficult "to accept that it would be decided differently today, having regard to the primary findings of fact which were made in that case." (485). Menzies J pointed out in Danvers v Commissioner for Railways (NSW) at 543, as Handley JA has pointed out in his judgment, that the Court in Goward's case "was not considering the question whether the injury arose in the course of worker's employment at all. It is clearly assumed that it did not. What the Court was examining was whether it could be found that the accident arose out of the employment. " In Hatzimanolis, the appeal was upheld "on the ground that the appellant sustained injury during an interval occurring within an overall period or episode of work and while engaged, with his employer's encouragement, in an activity which his employer had organised." (476). The injury was sustained in the course of employment. That followed from the evidence that the employer encouraged the worker to spend his free time at Wittenoom George "because ANI, through Mr Pope, its supervisor, organised the excursion, provided the vehicles and the food, and invited the appellant 'to come along'." (485). URJ INVERELL SHIRE COUNCIL v LEWIS (Sheller JA) 7 I do not think that the present case is decided simply because the worker was at the time of his injury within the caravan park. That is undoubtedly a factor which must be taken into account but it is not determinative any more than would be the fact, if it were so, that he was away from the caravan park site at the time of his injury. The employer's attitude to the way in which the worker was spending his time during the period he was injured is significant and must be taken into account. Whether the employer encouraged, induced or merely permitted the worker, in general terms, to be where he was, namely on the caravan park site, or, in particular terms, to take part in social activities with other people, are relevant factors. Manser CCJ made findings about these matters which he expressed as follows: "There is no evidence before me that the worker did anything other than have a few drinks, engage in some social interaction and partake of meals. There was nothing in his behaviour, either upon his own evidence or on the evidence of Miss Davis which would suggest that the worker in any way provoked the attack that was made upon him or committed any offence against the moral standards of any reasonable person. He was, true enough, assaulted at an hour when one would reasonably have expected him to have been in his bed, but he is but a young man and one has to accept that the capacity of the young to recover from an evening of social interaction and be available for work or study is greater than, for example, my own. The activity of having a meal with his companions at the caravan park might just as easily have been taking place at an earlier hour. There is no greater risk involved in eating later than eating earlier, even if one excludes the particular risk involved here, namely an assault with a deadly weapon by a deranged individual. Consequently what the worker was doing was incidental to his location at the particular place where he was required to be by the respondent.......... I cannot accept, nor was it put to me, that a reasonable employer would not have expected the worker to have been where he was at the time." Bearing in mind the passage from the speech of Lord Loreburn which I have quoted and the facts and circumstances recited in the judgment of Handley JA in my opinion there was no error in law in his Honour making the award that he did on the findings that he had made. I agree that the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: J POULOS QC/J LICHTENBERGER, Instructed by: ABBOTT TOUT RUSSELL KENNEDY Counsel for the Respondent: BJ GROSS QC/RE HOTCHKISS, Instructed by: WHITE BARNES and McGUIRE