Australian Coastal Shipping Commission v Averell

[1969] HCA 38

HIGH COURT OF AUSTRALIA

McTiernan, Kitto and Menzies JJ.

AUSTRALIAN COASTAL SHIPPING COMMISSION v. AVERELL

(1969) 122 CLR 348

4 September 1969

Seamen's Compensation

Seamen's Compensation—Injury—Seaman "travelling to or from his employment"—Seaman living and required to live on board ship during service—Visit home while ship in his home port—Seamen's Compensation Act 1911-1964 (Cth), s. 5AA (1)*.

Decisions

September 4.
THE COURT delivered the following written judgment : -
The Seamen's Compensation Act 1911-1964 (Cth) provides for compensation for personal injury by accident caused to a seaman "while he is travelling to or from his employment", s. 5AA (1). (at p349)

2. The respondent was a seaman in the employ of the appellant and a member of the crew of the motor vessel Lake Illawarra. His home port was Newcastle. On 2nd May 1966, the ship was moored at the coal loader at Newcastle where she had been taking on coal. The seaman was on duty up to 5.00 p.m. on that day when he left the ship to go to his home at Tighes Hill. He was required to be on duty again at 8.00 p.m. At about 7.50 p.m., whilst he was driving back from his home to the ship, he suffered injury by accident. His claim for workers' compensation succeeded in the District Court and it is from an award made in the seaman's favour that the Commission has appealed to this Court. It is, we think, convenient to set out the agreed statement of facts :

"1. The applicant joined the ship Lake Illawarra at Newcastle as an able seaman on 13th April 1966, under articles expiring on 16th May 1966. 2. The ship sailed for Whyalla in South Australia on 16th April 1966, and had arrived back at Newcastle via Port Kembla on 27th April 1966. 3. The ship was due to sail from Newcastle on 3rd May 1966, for Melbourne. 4. The applicant's home port is Newcastle. 5. On Monday, 2nd May 1966, the applicant had been at work on the ship until 5 p.m. 6. He was required to be on duty again at 8 p.m. for the purpose of shifting ship from the coal loader where she had been taking on coal. 7. The applicant was not required to work between 5 p.m. and 8 p.m. on the said day nor was he required to leave the ship and could have remained on board. 8. The applicant was free to leave the ship between 6 p.m. and 8 p.m. 9. The applicant in fact during the lastly mentioned period went to his home at Tighes Hill. 10. He was returning to the ship in a motor vehicle driven by himself to be on board by 8 p.m. when he sustained personal injuries upon a public street. 11. The applicant was employed in accordance with the Seamen's Award 1955 as varied. 12. When the ship was in port the applicant's usual working hours on week days were from 7 a.m. to 5 p.m. with breaks within those hours. 13. If the applicant worked outside those hours he was paid at overtime rates. 14. In the said period of absence from the ship the applicant was free to go where he pleased subject to liability to be recalled to the ship in case of emergency. 15. A number of able seamen were in the same situation as to working hours and absence on the said 2nd May 1966, irrespective of Newcastle being their home port. 16. The terms of his employment required the applicant to live on board the ship during the currency of his articles subject to periods of absence outside working hours when in port." (at p350)

3. The appellant's case was simply that the seaman could not have been "travelling to . . . his employment" within the meaning of s. 5AA (1) because he was required by the terms of his employment to live on board the ship and he was, in fact, doing so at the time when he was injured. The appellant based its contention on the identity of language between s. 5AA (1) of the Seamen's Compensation Act and s. 9A of the Commonwealth Employees' Compensation Act, and upon a statement of Windeyer J. in Adcock v. The Commonwealth (1960) 103 CLR 194, at p 210 , made with reference to s. 9A of the Commonwealth Employees' Compensation Act, viz. :

"It cannot, I think, have any application in the case of an employee who is required to 'live in' at his place of employment while he is in fact living in." (at p350)

4. We cannot accept the appellant's contention. (at p351)

5. In a series of cases, The Commonwealth v. Wright (1956) 96 CLR 536; Adcock v The Commonwealth (1960) 103 CLR 194 and The Commonwealth v. Hollis (1968) 118 CLR 305, the Court has considered the meaning and application of s. 9A of the Commonwealth Employees' Compensation Act and has established, not without dissent, that a worker can only be said to be travelling to or from his employment if there is "a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties", to use the language of Fullagar J. in The Commonwealth v. Wright (1956) 96 CLR, at p 552 . What has been found to be implicit in the section is the necessity for a journey from a place of abode, permanent or temporary, to a place where the duties of employment are to be performed. See The Commonwealth v. Wright per Fullagar J. (1956) 96 CLR, at p 553 , and per Kitto J. (1956) 96 CLR, at p 557; Adcock v. The Commonwealth per Fullagar J. (1960) 103 CLR, at p 204 , per Kitto J. (1960) 103 CLR, at p 205 and per Windeyer J. (1960) 103 CLR, at pp 210, 213 and 214 (at p351)

6. In this case the fact that the applicant was returning from his home to the ship provides the terminus a quo and the terminus ad quem for the seaman's journey, so that it was rightly held that, in the circumstances stated, he was travelling to his employment, notwithstanding that he was required to and did live on board his ship. (at p351)

7. Reliance was placed by the appellant upon the judgment of Napier C.J. in Davey v. Union Steamship Co. of New Zealand Ltd. (1953) SASR 35 , which has been mentioned with approval in the cases previously cited. What the learned Chief Justice said, however, was (1953) SASR, at pp 38, 39:

"It seems to me that 'travelling to or from his place of employment' refers to a seaman who is joining his ship or going home. It may, perhaps, apply when a sailor is going on or returning from leave, and whether the place in which he spends his leave is his permanent home or a temporary residence, but it does not cover a seaman going to a race meeting, or to a public house for a drink, or, as in the present case, for a stroll ashore to post a letter. On the facts in evidence, the appellant was not travelling to or from the ship. He was returning from a walk ashore."

The decision is clearly distinguishable for here we have the fact that the seaman was returning from his home to his employment at the time when he was injured. (at p351)

8. Acceptance of the appellant's argument would leave hardly any scope for the application of s. 5AA (1) for all seamen upon sea-going ships are required to, and do, "live in". This consideration is one which, we think, supports our conclusion. (at p352)

9. For the foregoing reasons we consider that the judgment appealed from was correct and that the appeal must be dismissed. (at p352)

Addendum.
MCTIERNAN J. I desire to add an observation for myself to the joint judgment to which I am a party in this case. Because of the inclusion of par. 15 in the statement of facts I express the opinion which I entertain that any able seaman to whom par. 15 applied would have been covered by s. 5AA (1) if he had sustained personal injury while travelling to his employment on the ship from a place away from the ship at which it was reasonable for him to stay while properly on leave from the ship between 6 p.m. and 8 p.m. on 2nd May 1966. (at p352)

Orders

Appeal dismissed with costs.