TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and POWELL JJA 7 June 1994, 16 August 1994 [1994] NSWCA 313 WORKERS COMPENSATION ACT S11 — ORDINARY RECESS — ABNORMAL RISK OF INJURY WORKERS COMPENSATION ACT s11 — meaning of "ordinary recess" — was a two hour break an ordinary recess — did worker voluntarily subject himself to any abnormal risk of injury. Facts: The employee's working hours were from 9 am to 3 pm and from 5 pm to 9 pm each working day. He suffered an injury when he was knocked down by a car during the period between 3 pm and 5 pm while on his own business away from his place of employment. He subsequently applied for worker's compensation. Held: (1) (per Mahoney JA and Powell JA) The evidence established that the worker worked not for a continuous period each day but for two distinct periods of work or shifts. The period of two hours between "shifts during which the worker was free to do as he wished does not come within the phrase "ordinary recess" in sl1(a) of the workers compensation Act. (2) (per Priestley JA dissenting) In the circumstances of this case it is quite appropriate to describe the two hour interval as an "ordinary recess" in the worker's day and within the meaning of s11(a). (3) (per Priestley JA) Assuming, without deciding, that the worker displayed contributory negligence in crossing the road, this conduct cannot be raised to the level of "voluntarily subjecting himself to abnormal risk" as specified in s11(b). ORDERS Appeal allowed with costs. Mahoney JA The facts and the issues are detailed in the judgment of Priestley JA which I have had the advantage of reading. This appeal is an appeal by way of rehearing. It is accordingly for this Court to make its own assessment of the facts. It has not been suggested that the learned judge was in a position of advantage or that otherwise his findings are such that this Court must defer to them. I differ from the learned judge in concluding that the injury in question did not occur during an "ordinary recess". On other issues I agree with his Honour's decision and with the judgment of Priestley JA. The meaning of "ordinary recess" in analogous legislation was examined by the High Court in Landers v Dawson (1964) 110 CLR 644. The worker's own evidence was that the hours he was working were "from nine until three and then from five in the evening until approximately nine". These were "two shifts" and that at the time of the injury the "shifts" he was working were "the usual shifts from nine to three and five to nine". There was no attempt in the evidence to vary this statement of the worker's employment. I am conscious that the Workers Compensation Act is, in a relevant sense, a beneficial Act vis-a-vis the workers and should be construed accordingly. Iam conscious also that the evidence of the worker should not be approached as if his words were the words in a formal pleading. But there was, in the end, 2 UNREPORTED JUDGMENTS nothing to suggest that the words used, both by the worker and by his counsel, were not intended to convey what ordinarily would be their meaning. The distinction between the two periods of work and the description of them as "two shifts" were repeated during the evidence. Therefore, it is in my opinion proper to categorise his employment and the incidents of it according to what was there said. On that basis, the worker worked not for a continuous period each day but for two distinct shifts. The term "recess" as ordinarily used is not, in my opinion, appropriate to describe the period of time that exists between the end of one shift and the beginning of the next shift worked by the worker. Ordinarily, "recess" is used to denote a break in the actual execution of work during a period of time when the worker is in the course of his employment. It is wrong to stereotype working conditions or to construe terms in legislation of this kind by reference only to more conventional working arrangements. As Powell JA suggested during argument, it must be borne in mind that the language used in the legislation is intended to operate by reference both to usual and to less usual classes of employment. And, it may be, in more recent times the conventional employment for eight continuous hours each day (or less) is increasingly being replaced by more flexible work arrangements. But, taking these matters into account, I do not think that a period of two hours between "shifts" during which the worker was free to do what he wished was within the phrase "ordinary recess". "Recess", I think, means something else. Reference was made from the Bench to the alternative phrase used in the legislation. The case was not, I think, fought on that basis before the trial judge. The phrase has no application to a period between shifts: ordinarily, it would refer to an absence which had and needed authorisation because, without authorisation, the worker should have been engaged in his employment. That has no application to a period between shifts. I would therefore uphold the appeal with costs. Priestley JA Mr A Injac (the worker) was employed by Tooth and Co Ltd (the employer) as a cook at the Mona Vale Hotel. His working hours were from 9 am until 3 pm and from 5 pm to 9 pm each working day. On 25 September 1989 in the interval between 3 and 5 pm the worker, on his own business, away from the Mona Vale Hotel, was knocked down by a car when crossing the road. He was injured, and his capacity for work was significantly affected. He applied to the Compensation Court, claiming compensation under a number of headings. S9 of the Workers Compensation Act 1987 (the 1987 Act) read in the light of definitions in s3(1) and s4 entitled the worker to compensation if he could establish his injury arose "out of or in the course of employment". To prove this he relied upon s11, which says: "Tf a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service or apprenticeship- (a) is temporarily absent from that place on that day during any ordinary recess or authorised absence; (b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury; and (c) receives a personal injury during that absence, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly." URJ TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC (Priestley JA) 3 The worker's case came on for hearing before Johns CCJ who found that the facts brought the worker within s11 and made awards of compensation in his favour. S10 was also relied on as an alternative basis for the worker's claim that his injuries arose out of or in the course of employment. That section provided that a personal injury received by a worker on a journey to or from work (such a journey being carefully defined) was, for the purposes of the Act, an injury arising out of or in the course of employment. Johns CCJ did not decide this question, and it was not pursued in the appeal. Johns CCJ summarised the facts concerning the worker's employment as follows: "The designated hours of his employment were from 9:00 am in the morning till 3:00 in the afternoon. Then from 5:00 pm in the evening until approximately 9:00 pm. During these hours he worked entirely in the kitchen. These designated hours he was required to work and the break between 3:00 pm to 5:00 pm was a period ordinarily allowed as part of the terms of his employment." Later in his reasons he gave the following explanation for his conclusion on this point: "In this case, it seems to me that the particular period was a recognized break in the applicant's normal duties, that is, in relation to the particular shift he was working on the day of his injury. The mere fact that it happens to be of two hours duration rather than perhaps of one hour duration, which may be more common, is not in these circumstances of any relevant consequence. In my view, what is important is that the nature of the break was one which was ordinarily allowed, regularly taken and in accordance with the terms of the employment. The nature of the interval was one which was normal between two periods of a a normal work day. It was associated with rest, refreshment or relaxation occurring at a regular time. Therefore, I conclude that the particular break between the hours of 3:00-5:00 pm in the applicant's working day constitutes an ordinary recess within the meaning of the section." For the appellant employer it was contended that Johns CCJ was wrong in holding that the two hours between the two working periods which the worker worked each working day was an "ordinary recess". The argument was said to be supported by statements made in the High Court decision Landers v Dawson (1964) 110 CLR 644. Part of the submission was that his Honour was wrong in treating the two separate periods of work each day as being one shift. This submission to some extent called into question his Honour's summary of the terms of the worker's employment as set out in the first quotation above from his Honour's reasons. Consideration of this submission will require both a scrutiny of the evidence relating to the terms of the worker's employment and also some attention to the history and purpose of s10 and s11 of the 1987 Act. As to the evidence, there is not much to scrutinise. The entirety of the oral evidence appears in the following extracts from the transcript. In evidence in chief: "Q. In 1983 when you first commenced at the Mona Vale Hotel, what hours were you working. A---From 9.00 till 3.00 and then from 5.00 in the evening until approximately 9.00. Q. You were in the kitchen during those two shifts. A. Yes, I did work in the kitchen. Q. Those, in fact, were the hours you were working up until 25 September 1989 when you had the car accident." (AB 14) 4 UNREPORTED JUDGMENTS "Q. Mr Injak, on the last occasion you indicated that your hours of duty were between 9 am to 3 pm and 5 pm to 9 pm. A---Yes, sir. Q. If you could talk through the interpreter, Mr Injak. A---Yes. Q. When you ceased work at 3 pm what was your usual habit once you ceased work at 3 pm. A---I would go home. Q. Where was your home. A---14 Mona Vale Road, Mona Vale." (AB 26) "Q. Then, Mr Injak, you said that when you stopped work at 3 o'clock you would usually go home. A---Usually I'm going home. Q. If you could speak through the interpreter, and what would you do when you got home. A---I would do something in the garden or cook something or watch television or similar. Q. Then what time would you leave home to go to the 5 pm to 9 pm shift. A. On foot I would go 15 minutes to 5.00 and by car 10 minutes before 5.00. Q. And you would then go back to your work at the Mona Vale Hotel. A. Yes. Q. Then on this day, 25 September 1989, you had to go to the bank at Narrabeen to pick up some deeds, I think you indicated in your evidence. A. Yes." (AB 27-28) "Q. What shifts were you working as at that time. [This was after the worker's injury.] A---The usual shifts from 9.00 to 3.00 and 5.00 to 9.00. Q. When you said you were not happy with that what happened. A. After that he called me to come to the office and he told me that the company doesn't want to keep me any more and that he has to dismiss. Q. When he told you that was that 16 September 1990. A---That was before that, at the end of August, he offered me two salaries and told me to go. Q. When you say two salaries, is that 2 weeks' pay. A---Yes, he told me that this is according to the regulations and I could leave immediately." (AB 31) In cross-examination the worker was asked about work he had done after he was dismissed by the employer. Counsel called the court's attention to some of his answers which were said to add a little to the detail of his pre-accident employment conditions: "Q. When you were at Manly Warringah [a later place of employment] you were working sometimes more than 2 days. A---That was earlier. Q. That was until January of this year, [1993] was it not. A--- During the last time I worked there it was 4 hours per week. Q. When you were at Mona Vale Hotel after the accident you were working 5 days a week. A---Yes." (AB 38) The only other information bearing on terms of employment was contained in Exhibit A which said that the worker was employed on a salary of $550 per week and was not employed under an award. Before turning to consider the history and purpose of s10 and s11 of the 1987 Act I will note the appellant employer's principal arguments against the availability to the worker of s11. It was said that statements in the High Court in Landers bound the Compensation Court to find that the break between what were asserted to be the worker's two shifts was not an "ordinary recess" regularly allowed for meals or rest. It was submitted that the break was more likely to have been a break reflecting the routine of the employer's activities (that is a need to prepare first for lunch and then later for the evening meal) rather than a recognised break for the purpose of the worker's having a meal or a rest. Further, the two hour break was a period during which the worker's time was entirely his own; and two hours was too long for an "ordinary recess". URJ TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC (Priestley JA) 5 It seems to me that the worker in the present case fell within the words of s11, with scarcely the possibility of argument, subject only to the question whether the interval between 3 and 5 pm in his work hours could properly be described as an "ordinary recess". I have had considerable help in understanding the meaning of those words in their context from a consideration of their history and their purpose in the light of relevant materials bearing on their meaning in their context. These matters were dealt with in a way very useful for present purposes by the Full Court of the Victorian Supreme Court in Landers. That was a case in which both the periodical journey (s8(2)(b)(i)) and the "ordinary recess" (s8(2)(a)(ii)) provisions of the Victorian Workers Compensation Act 1958 were relied on by the worker. In dealing in some detail with the periodical journey provisions Lowe and Pape JJ recounted the history relating both to the periodical journey and the "ordinary recess". They said: "The Workers Compensation Acts originally provided that compensation was payable only in cases where 'in any employment personal injury by accident arising out of and in the course of the employment' was caused to a worker and, consequently, compensation was payable only where the worker's injury was received whilst he was actually carrying out the duties of his employment. Once he ceased his employment (if he then sustained injury), he was not entitled to compensation, nor was he so entitled if injured before he reached his place of employment to begin his work. It was realized that the Act, so construed, did not always give relief to the worker in cases which seemed to come within the spirit of the legislation. For instance, in some cases where the worker having arrived at his place of employment had not started work when he was injured or if the injury occurred during a break in the employment either when ordinarily taken or specially permitted by the employer. In 1946, consequently, the scope of the Acts was materially broadened. First, by the Workers Compensation Act 1946 (No 5128) the Act was amended to provide that the worker was entitled to compensation if his injuries arose out of or in the course of his employment (s3(1)(a)). Secondly, the course of employment itself was extended and it was provided that his injury should be deemed to arise out of or in the course of his employment if the injury occurred (1) while on any working day on which he had attended his place of employment he was present thereat or, having been present, he was temporarily absent therefrom on that day during any ordinary recess and did not during his absence voluntarily subject himself to any abnormal risk of injury, or (2) while he was travelling between his place of residence and his place of employment or certain other places where he was required to be by virtue of his employment, subject to the conditions contained in the provisos which for present purposes we need not refer to (s3(1)(e)). With some amendments, these provisions now appear in s8(2) of the Workers Compensation Act 1958. It seems clear that s8(2)(b) was designed to protect the worker whilst going to his work and going to his home from his work, and that s8(2)(a) was designed to protect him after he had arrived at his place of work even though he was at the time of his injury not engaged in any work at all and even though he was temporarily absent during an ordinary recess. S5(1), of course, protected him in respect of all of his activities arising out of or in the course of his employment. By these amendments the operation of the Act was extended so that the worker received protection from the time that he left his home in order to go to his work, throughout his working day (including absences during ordinary recesses) and up to the time that he arrived home after concluding his work." (at 494-495) 6 UNREPORTED JUDGMENTS The predecessor of what is now s11 of the 1987 New South Wales Act was inserted in the 1926 New South Wales Act by Act No 20 of 1951. Its derivation from the Victorian provisions of 1946 discussed by the Victorian Full Court in Landers is obvious and was acknowledged by the Hon RR Downing in Committee in the Legislative Council when the Bill which became Act No 20 of 1951 was being debated: New South Wales Parliamentary Debates, 2nd series, vol 196, at 2882. (Mr Downing had made the second reading speech in support of the Bill immediately preceding the Committee session.) The conclusion of Lowe and Pape JJ in Landers that is particularly relevant for purposes of the present case is that the periodical journey and ordinary recess provisions of the Act were intended to protect a worker from the time of leaving home, throughout the working day (including absences during ordinary recesses) until return home after work. Their conclusion seems to me to be fully justified by the language of, the provisions in their context. The slight change of language in s11 from that in the original Victorian provision does not seem to me to affect this conclusion. Looking at the words of s11, the whole provision is based upon a worker having attended at the place of employment on a day (which in context certainly includes working day) pursuant to the worker's contract of service and then being temporarily absent from the working place during that (in my opinion, working) day during any ordinary recess, such recess (again in my opinion, necessarily) being an ordinary recess in the worker's working day. The conclusion seems to me to be reinforced by the inclusion in 1980 in s11's predecessor of the words "or authorised absence" (by Act 79, 1980). Some further assistance on the meaning and scope of s11 is available from an earlier decision of the Full Court of the Victorian Supreme Court. This was Drummond v Drummond [1960] VR 462. In Drummond the worker was employed on his father's farm. On week days he worked a full day, with breaks for morning tea, lunch and afternoon tea. On Saturdays he worked until noon, and then again in the evenings. He was injured in a car accident on a Saturday afternoon when driving from a football match towards his father's farm for his evening's work. The Workers Compensation Board held the worker fell within s8(2)(1)(a) of the Victorian Workers Compensation Act 1951, the "ordinary recess" provision. In a joint judgment, Lowe, Gavan Duffy and Dean JJ said: "The extended operation of s8(2)(a) is *intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunchtime, or a "smoko' or similar break normally referred to as a 'recess'. The section extends to injury during such a recess, even though during such recess the worker may be temporarily absent from his place of employment. If on its true construction the extension covers such a case as the present the applicant will be entitled to recover. But in our opinion the period between noon and the evening on the Saturday when the applicant was injured was not an 'ordinary recess' within the meaning of those words in s8(2)(a)(ii). The word 'recess' in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or 'smoko'. It is a period of rest incidental to a period of labour, in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day.* URJ TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC (Priestley JA) 7 [* The passage between the asterisks was later cited by the High Court in Landers.] It would not be an ordinary or natural use of language to speak of the period between noon on Saturday and Saturday evening, a period of some five to six hours as a 'recess'. It is much more than a brief interruption of an otherwise continuous period of work. It is really a period between the cessation of one period of work and the performance of his evening duties. In Webster's Dictionary, 'recess' is defined to mean: 'remission' or suspension of business or procedure for a comparatively short time; a short intermission, as of a legislative body, court or school'. In Murray's Oxford Dictionary the word is defined: 'the act of retiring for a time from some occupation; a period of cessation from usual work or employment'. In all the circumstances, and particularly by reason of the length of time elapsing between ceasing work at noon at the performance of other duties in the evening, we do not think the period involved was one which can properly be described as a 'recess'. It is of some importance that the Board has found that 'on Saturday the applicant performed general farm duties until noon, when he ceased work. On Saturday evening he returned to his father's house and performed further duties'. It is to be observed that the finding of the Board is that applicant 'ceased work' at noon, and 'returned' in the evening to perform further duties. This seems to us inconsistent with the period being regarded as a mere 'recess' from work as we understand that word. The view we have formed is assisted by the word 'ordinary'. There is room for some difference of opinion as to its meaning. It may mean usual in the particular type of employment; it may mean a period ordinarily known as a recess. We do not think that the fact that a particular worker usually has his Saturday afternoon free but works on Saturday evening, or that this is usual in a particular industry, has the effect of making Saturday afternoon an 'ordinary recess'. The word 'ordinary' is more apt to convey the idea that the period in question is one which would ordinarily be described as in recess. The interval in question here cannot, in our opinion, properly be so described." (at 463-464) It seems that the next case to get to the Full Court of the Victorian Supreme Court concerning the application of the "ordinary recess" provision was Landers, from which I have already taken the passage earlier set out discussing the history and purpose of that provision and the periodic journey provision. The facts in Landers are concisely stated in the headnote ([1963] VR 491): "A worker was employed by a baker with whom he resided at N in a house which was within the same enclosed block of land as the bakery. The worker's duties included delivering bread and assisting in making dough. On a particular day, the worker made regular deliveries of bread, and thereafter made a special delivery of bread in the township of P about 15 miles from N. This delivery was made between 10 and 11 am, and the worker was not required to be at the bakery until 4 pm to make dough, though he was entitled, if he wished, to have his midday meal at his employer's residence. After delivering the bread at P, the worker, with his employer's permission, went swimming at a point further away from his employer's premises than P, and while so doing he sustained a broken neck when diving." In the part of their reasons that dealt with the "ordinary recess" aspect of the case Lowe and Pape JJ noted that counsel for the worker had argued that in the worker's particular employment a recess occurred whenever there were no duties for him to perform. Lowe and Pape JJ did not agree with this submission. Relying on Drummond, which they said laid down the law they must apply, they said that 8 UNREPORTED JUDGMENTS on the Board's factual findings and on the reasoning in Drummond "it cannot be said that this injury was sustained in an ordinary recess. The findings show that the applicant was 'off duty' from some time before 11 am until after lunch, and that he could please himself as to what he did during that period. This period would not, in our view, ordinarily be described as a recess, and the nature of the activity undertaken, the duration of the intermission and its purpose all lead to the view that the injury was not sustained during an 'ordinary recess'." (at 500) This decision was upheld in the High Court, where an appeal was heard by Kitto, Taylor, Menzies, Owen and Windeyer JJ. The first four wrote joint reasons in which they cited the asterisked part of the passage from Drummond above, and then went on to say (at 651) that the argument for the worker depended on the idea that since he was available for duty for twenty-fours of the day any break in that period was a "recess" and that because the worker was regularly allowed to swim as he did on the day of the accident, the accident happened in an "ordinary recess". They thought the argument was unsound because the worker should not be regarded as having been working a continuous twenty-four day interrupted by breaks for refreshment or relaxation. In taking this approach they were taking up the idea in the last sentence of the asterisked passage from Drummond namely that the ordinary "recess" referred to in the statutory provision would usually be one in the normal working day. On this basis, the facts in Landers simply could not be fitted within the words of the statutory provision. Further, it was in this context that they said that during the substantial intervals of the day and night when the worker was not required to work "his time was entirely his own" (at 651). Although Kitto, Taylor, Menzies and Owen JJ expressed agreement with the passage cited from Landers, they also made it clear that they did not regard it as a comprehensive statement of the effect of the provision, because they ended this part of their reasons by saying it was "unnecessary to attempt to define exhaustively the meaning" of "ordinary recess" but that it was ''sufficient to say that we agree... that the appellant's injury could not reasonably be held to have occurred during an 'ordinary recess'" (at 651). With this in mind it seems to me to be relevant in the present case to ask what was the worker's working day. The employer's counsel in effect submitted that he did not have one in the relevant sense: that is, the submission was that he had two quite separate shifts. He relied on the use in the worker's own evidence of the words "two shifts" to describe the worker's working arrangements. In some circumstances the use of such terms could be quite significant. In the present case however, it seems to me that since the basic facts, simple as they are, relating to the worker's employment as a cook are very clear, and it can be inferred, both from the way in which the worker was cross-examined and the absence of any evidence from the employer suggesting there were further terms relevant to that employment, that the worker's employment contract was no more complicated than the evidence reveals, it is a matter for the court to decide what is the appropriate characterisation of the interval of two hours between the worker's two periods of work. So, bearing in mind the description of his two work periods each day as two shifts, but not regarding that description as concluding the question, I return to consider whether it is appropriate in the present case to regard the worker as having had a working day in his job as a cook. The answer to the question may be more easily seen if one fact is changed: consider the question if the worker had lived at Bondi instead of within walking distance from his place of work. The URJ TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC (Priestley JA) 9 supposition does not raise an improbable case. Judicial notice can be taken of the fact that workers in and around the Sydney metropolitan area travel much greater distances to and from work than the distance from Bondi to Manly Vale. I think there is little doubt that a worker travelling from Bondi to Manly Vale to work the hours required by the contract of service in the present case would be described in ordinary language as having a working day which commenced at 9 in the morning and ended at 9 at night. As a practical matter the worker would be unlikely to go home during the two hour break and would be more or less confined to activities in an area to which the work place would be central. T also think it would be an everyday use of language to describe the two hour gap between 3 and 5 in the afternoon when the worker could do what he liked as a break in his working day. I do not think it should be regarded any differently because the worker lived close to his work and was able to go home during that break. The second main matter emphasised by the employer's counsel was that the worker was "on his own time" during the two hour break. The argument assumed that when that phrase was used in the cases (as for example by the High Court in Landers at 651) the fact of a worker's being on his own time was helpful in some way towards deciding whether or not he was in a period of "ordinary recess". This assumption cannot, in my opinion, be correct. When used in the earlier cases the phrase "on his own time" can only have been used descriptively not determinatively. In Landers for example the High Court made its remark about the worker's time being entirely his own only in connection with their conclusion that the "working day" concept argued for by his counsel was not available on the facts of the case. In my view it is clear from s11 itself, and it was held in this court in Thompson v Lewisham Hospital (1977) [1978] WCR 111 (by Glass JA at 118, with whom Hope JA agreed) that a worker away from the employer's premises during a work interval may or may not be outside the course of employment (in the ordinary sense) depending on the circumstances. The same position had earlier been accepted in the Full Court of this court: Havard v Illawarra Meat Co Ltd (1956) 73 WN 334 at 335. That is, whether the worker in the present case was on his own time or not during the 3 pm to 5 pm interval, was a neutral matter so far as concerned the question whether that interval-was an ordinary recess or not. The other principal matter relied upon by the employer's counsel was that a two hour break was longer than could be considered to be an "ordinary" period for recess. There is some force in this consideration, but it seems to me to be diminished by the view I have formed that it is sensible to describe the worker's work at the hotel, starting at 9 in the morning, ending at 9 at night with a two hour break from 3 to 5, as his working day. On that premise, the fact that the interval between his two periods of work was as long as two hours does not seem to me to be so incongruous with the idea of an "ordinary recess" as to prevent a conclusion that the interval should be so described. Taking into account the various considerations I have mentioned, my conclusion is the same as that of Johns CCJ. In my opinion it is quite appropriate to describe the two hour interval as an "ordinary recess" in this worker's working day and within the meaning of s11(a). It was also submitted for the employer that the circumstances in which the worker was injured showed that he had voluntarily subjected himself to an abnormal risk of injury (see s11(b)). The worker was knocked down by a car when crossing the road in circumstances which might be described as involving 10 UNREPORTED JUDGMENTS contributory negligence on his own part. Assuming that against him for the purposes of argument, without deciding it, I do not think his conduct can be raised to the level of voluntary subjection of himself to abnormal risk of injury. The phrase in s11(b) is "voluntarily subject himself"; if the word "voluntarily" is alone concentrated on, it may be possible to regard the worker as having voluntarily crossed the road in the way that he did, but such an approach to the provision seems to me to be misguided; the words "voluntarily subject himself" taken together convey the idea of a degree of deliberation in the worker getting into the position of risk which in my opinion is altogether absent in the present case. I do not see any merit in this ground of appeal. In my opinion the appeal should be dismissed with costs. Powell JA In common with both Mahoney JA and Priestley JA I agree that the only real issue for determination in the present Appeal is whether, on the facts as found by Johns CCJ, it may properly be said that, at the time of his sustaining his injuries, the Respondent was "temporarily absent" from his place of employment "during (an) ordinary recess or authorised absence". Albeit that it leads me to a different conclusion from that which Priestley JA has reached, I share with His Honour the view that a consideration of the history of s11 of the Workers Compensation Act 1987 ("the 1987 Act") is of assistance in seeking to determine the construction to be given to the provisions of para(a) of s11 of the 1987 Act. In Mills: Workers Compensation New South Wales Service at 1399.8 the learned author suggests that s7(1)(e) of the Workers Compensation Act 1926 ('the 1926 Act") from which s11(a) of the 1987 Act is derived was inserted into the 1926 Act in 1951 to overcome the result of the decision in Flanagan v Great Northern Wool Dumping and Stevedoring Co Pty Ltd ("Flanagan")! in which case - notwithstanding its then recent decision in Mould v Davidson ("Mould") that, where an employee, while on his employer's premises, sustained an injury during a break for the purpose of resting or refreshing himself, it was open to the Workers Compensation Commission to hold that the worker had, in the circumstances, sustained injury in the course of his employment - held that injuries sustained while away from the place of employment could not be so regarded even though sustained during such a break (see also Humphrey Earl Ltd v Speechley That this was the intention of the Government, when introducing this particular proposal as part of the Workers Compensation (Amendment) Bill - the source of the amendment, as will later appear, clearly being the like provision in the Victorian Act - to overcome what was thought to be the anomaly revealed by cases such as Flanagan by permitting the recovery of compensation for injuries sustained during such periods as were dealt with in Mould, but while temporarily absent from the employee's place of employment, is, I think, made clear by the following passage in the Second Reading Speech of Mr Finnan, then the Minister for Labour and Industry and Social Welfare:- S7 of the Act deals with the class of injuries that are compensable and has been extended to include injuries received on daily or periodic journeys from home to a workers' camp at or near the site of a job. This applies particularly to country 1. [1949] WCR 42; 49 SR 340 2. (1943) 44 SR 113; affd (1944) 69 CLR 96 3. (1951) 84 CLR 126. URJ TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC (Powell JA) 11 workers engaged on railway construction, dam work, and so on. The camp will be considered their home and they will be entitled to compensation if they are injured proceeding to or from it. It will also apply to persons injured on their journey home from work after a substantial interruption of the journey, provided that the risk of injury has not been materially altered. We feel that we must act more fairly than some previous governments have done. These amendments have been largely inspired by anomalies and deficiencies in the Act that have caused unfortunate disqualifications in deserving cases. A worker may cease work at five o'clock in the afternoon and depart from his normal journey home to visit a hospital to see a sick relative. He may be required to deviate greatly from his usual route and travel to the far northern suburbs. If it can be proved that the risk of injury has been materially affected he will not receive compensation. The provision will apply also to persons injured while away from the place of employment during the lunch hour and for other short periods, provided that the injury is not due to the employee's misconduct. Workers at many foundries, factories and shops, when the twelve o'clock whistle blows, cross the streets outside their places of employment to buy sandwiches or pies for their lunches. A worker might be injured during the few minutes that he is away from his place of employment, but at present the employer bears no liability to pay compensation. That this was the understanding of other members of the Assembly albeit that they appear to have thought the proposal went too far - is indicated by what was said by Mr AR Richardson (as Richardson J then was) then the Member for Ashfield, who led the debate on behalf of the Opposition during the course of the Second Reading debate. After commenting (inter alia) that "legislation of this character is too beneficial", Mr Richardson continued (inter alia):- " Therefore I ask the Minister to review his proposals and to consider carefully whether they are not extreme. As an example of their far reaching effects let me give this illustration. A typist employed in a city office goes shopping in her lunch hour with a companion who is not employed and is not subject to the provisions of the Workers Compensation Act. If those two women are involved in an accident while they are in each others company, the one who is a worker within the meaning of this measure will receive compensation benefits. Her friend will receive nothing. Why should the Workers Compensation Act be extended to protect the typist - or any other worker for that matter - who is fulfilling a personal obligation or meeting some personal requirement during that worker's own time - the lunch hour? The Governments proposals go too far." That this was also the understanding of Members on both sides of the House in the Legislative Council is indicated by the following passages when the Bill was being dealt with in Committee in the Legislative Council. The Hon Richard Thompson, when referring to the proposed new para(e) said: "The purpose of this provision is to extend the benefit of compensation to a person who suffers injury during the lunch hour or during absences from work. This is sectional legislation. A typist in an office might go out during the lunch hour to meet a friend and they become involved in an accident. The typist would be entitled to compensation, but her friend, if she were on holidays, would have no claim. That argument might be used as a ground for extending the operation of this paragraph to all cases of accident, but it is possible to go too far. The bill does that." 12 UNREPORTED JUDGMENTS So too, Colonel the Hon HJR Clayton said: "Reference has been made to accident which may occur during a luncheon recess, and it seems to me that there is an inconsistency between the provision that a worker shall be entitled to compensation if he does not during such absence voluntarily subject himself to any abnormal risk of injury and the provisions that he shall be entitled to compensation if he receives an injury without serious or wilful misconduct on his part. It seems to me that those two provisions are inconsistent." When responding to the various matters which had been raised in the debate the Hon RR Downing, the Minister of Justice and Vice President of the Executive Council, who had charge of the passage of the Bill through the Legislative Council said (inter alia):- "What has been loosely termed the 'lunch hour protection' has excited some comment. It has been taken from the Victorian Act, and the insertion of the words "serious and wilful misconduct' is conformity with the general requirement that in no such case shall compensation be paid. I do not think I need give examples of the sort of abnormal risk that young people might be prompted to take during the lunch hour - such as climbing a tree for the purpose of seeing how far one can crawl out on a limb. That could be decided by the court and I have no doubt that there would be such cases in which the injured person would be debarred from entitlement to compensation." Most - although not all - of the authorities (see, for example, Harvard v Illawarra Meat Co Ltd ("Harvard'')4; Drummond v Drummond ("Drummond")5; Landers v Dawson ('"Landers")®; Kmiec v The Commissioner for Railways'; Smithard v Speares Brick and Pipeworks Pty Ltd8; Silk v Camberg Carpets Pty Ltd®; Morton v Beckett!®; Beere v Royal Alexandria Hospital for Children!!; Thompson v Lewisham Hospital! as to the meaning properly to be given to the phrase "ordinary recess" are of limited value since, in the case of decisions of Appellant courts, they are decisions on cases stated - in which cases the issue was whether or not it was open to the relevant Tribunal, on the facts found, to hold that the injury occurred during an "ordinary recess" - while, in the case of decisions of first instance judges they turn very much on their own facts. However that may be, in most, if not all, of such cases, one might find a reference - sometimes in express terms and sometimes in general terms - to that part of the Judgment of Lowe, Gavan Duffy and Deane JJ in Drummond which, as Priestley JA has pointed out was cited with approval by the High Court in Landers. Although, as the Judgments in the present case make clear, the question is one upon which minds may differ, I agree with the approach taken by Mahoney JA, that is, that the period between 3 pm and 5 pm was, not "an ordinary recess', but, rather, a break between two distinct periods of work. I should add, that in so concluding I have not relied on the use by the Respondent or his counsel of the word "shifts" nor upon the fact that because his home was close to his place of (1956) 73 WN 334; [1956] WCR 4 [1960] VR 462 [1963] VR 491; (1964) 110 CLR 644 [1965] WCR 44 [1968] WCR 130 [1971] WCR 75 10. [1971] WCR 293 11. [1972] WCR 155 12. [1978] WCR 111 CPN AME URJ TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC (Powell JA) 13 employment, the Respondent was during the relevant period able, if he so chose, to return home - that fact, as the decision of the former Full Court in Harvard demonstrates, is not inconsistent with the relevant period being an "ordinary recess"; rather it seems to me that, analogically, the situation was akin to that which the Full Court of the Supreme Court of Victoria and the High Court was concerned to deal in Landers. Although, as Mahoney JA has recorded, no attempt was made to support the Respondent's claim at first instance, or the Award on appeal, by reference to the phrase "authorised absence", it may be of some assistance, for future cases, to record that the history surrounding the introduction of that phrase into s7(1)(e) of the 1926 Act would seem to support the observation made by Mr AF Puckeridge QC, who appeared with Mr J Gracie for the Respondent on the hearing of the appeal, that, in contrast to the phrase "ordinary recess", which conveyed a sense of regularity and periodicity, the phrase "authorised absence" suggested that what was contemplated was an ad hoc arrangement. The phrase "authorised absence" was introduced into the 1926 Act by the Workers Compensation (Amendment) Act 1980, the Bill for which - the Workers Compensation (Amendment) Bill - was first introduced into the Parliament in November 1979. In his Second Reading speech, Mr FJ Walker, then the Attorney-General and Minister of Justice, said (inter alia):- *T turn to other matters affecting the rights of the worker. There are several gaps in the cover available to a worker which the Government has seen fit to remedy. Where a worker has two jobs, a journey between his two places of employment will be covered, and he will be deemed to be journeying to the second employment from his place of abode. Similarly, a worker who is injured on an authorised temporary absence from his place of employment will now be able to claim compensation. Previously, if the worker's time of absence from his place of employment did not conform with the description of an ordinary recess, he could not recover compensation. These omissions are being remedied. There have been several cases of persons being injured while they were engaged on industrial matters concerning their employment and that of others. In one case, a person was journeying to Sydney to make submissions on behalf of her fellow employee to the employing authority when she received injuries. These circumstances are connected with the person's employment and should come within the ambit of actions covered under the present legislation. Provision is made in the bill for a worker to be covered where, in his capacity as an accredited trade union representative, he acts as such with the consent of the employer or pursuant to his industrial award." When the Second Reading debate resumed in February the following year, Mr KJ Ryan, then the Member for Hurstville, said (inter alia):- "T refer now to the amendment to s7 of the Act in respect to an injury occasioned during a recess. The meaning of the word recess is being extended to include an absence from work authorised by the employer. I refer the House to an example of where this amendment, if previously in operation, would have been most beneficial to a constituent of mine. Owing to the sickness of his children a worker was recalled home from work. He was permitted to return home by the employer but on the way he was killed. Some 16 months later the young widow with two young children has not received any lump sum payment under s8 of the Act or any weekly payments for the children. I bring this matter 14 UNREPORTED JUDGMENTS to attention with the greatest respect to the legal advisers handling the claim and to the Workers' Compensation Commission which has been hearing it. Attempts have been made to bring the case under the periodic journey provisions. The inclusion of the words 'or authorised absence' after the word 'recess' in s7 of the Act will overcome this problem. It is logical and natural that if a worker should return to his home with permission of his employer he should be covered for workers compensation in the same way as he is covered when proceeding to and from work, during his luncheon break, and so on." Although, during the course of his Second Reading speech in the Legislative Council, the Hon DP Landa, then the Minister for Education and Vice-President of the Executive Council, who had charge of the passage of the Bill through the Legislative Council, made no more than a passing reference to the proposed amendment, the Hon LA Solomons, who led the debate for the Opposition, observed (inter alia):- "Another matter of continuous difficulty in the courts is the question of what happens when a worker is injured when carrying out what seems to be a legitimate purpose during his working hours but it is not something done in the course of his employment. The Courts have determined each of those cases in the light of its own circumstances. Some decisions - and, I am pleased to say, only some - have led to substantial hardship. The proposed amendment to s7(1)(e)(i) would insert after the word 'recess' the words 'or unauthorised absence'. That provision deals with a person who, with the consent of his employer, leaves his place of employment for a particular purpose and is injured during that time. There seems to be no basic difference between those circumstances and the case of a worker who is injured on a journey either to or from his work. The amendment appears to be proper and will lead to a greater degree of justice being given to workers. As I have indicated, I record these matters only so that they might be of assistance if the question as to the meaning proper to be given to the phrase "authorised absence" is to arise in the future. As I have also previously indicated, I agree with the view expressed by Mahoney JA on the only real issue in the present case and accordingly agree with the Orders proposed by His Honour. Appeal allowed with costs. Counsel for the Appellant: J POULOS QC/TM WARDELL Counsel for the Respondent: AF PUCKERIDGE QC/JA GRACIE Solicitors for the Appellant: TILLYARD and CALLANAN Solicitors for the Respondent: VICKOVICH and ASSOCIATES