Brereton, G.E. v Commonwealth of Australia

[1987] FCA 405

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA 1

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VICTORIA	DISTRICT REGISTRY	1 No. VG	289	of	1985
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DIVISION GENERAL 1

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B E T W E E N :

GRAEME EDGAR BRERETON

I Applicant

A N D :

COMMONWEALTH OF

AUSTRALIA

Respondent

I	COURT :	NORTHROP, KEELY AND RYAN JJ.
-	DATE :	23 JULY, 1987

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The Court: This is an appeal from a decision of the

Administrative Appeals Tribunal (the Tribunal), given on 11

December 1985, affirming a decision of a delegate of the

Commissioner for Employees' Compensation, made on 27 July

1982, under the Compensation (Commonwealth Government

Employees) Act 1971 (the Act). The delegate had decided that

the Commonwealth was not liable to pay compensation to the

applicant who was, at the material time, a member of the

Defence Force, serving as a private in the Army. The

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Tribunal decided that	the Commonwealth was "not liable to pay
compensation to [the	applicant] because the personal injury

he suffered did not arise out of or in the course of his

employment by the Commonwealth and cannot be deemed to have

done so" and affirmed the delegate's determination. The

appeal to this court from the decision of the	Tribunal is on	...
questions of law only.

The findings of fact made by the Tribunal included

the following:-

"... from early in 1980 until about 17

February 1981 the applicant was statloned at the Army's 2 Military Hospital, Ingleburn. On about 17 February 1981 he was posted from that unit to the Army's 2 Nilitary District Personnel Depot at Watsons Bay to await his

discharge from the Army. While at that

depot he resided in barracks and was required to undertake such duties as might be assigned to him until he was discharged. February 20, 1981 was a Friday; the applicant was on duty on that day until

about 4 . 0 0 p.m. After that he rode his

motor cycle from Watsons Bay, which is a part of metropolitan Sydney situated to the east of the city centre, to 2 Nilitary

Hospital, Ingleburn. Ingleburn is situated

between Liverpool and Campbelltown. The

hospital there is located between

Campbelltown Road and the South Western Freeway, which is part of the Hume Highway. The applicant arrived at the hospital early in the evening and spent the evening with

hls friends there; until 10.00 p.m. he was

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in the Other Ranks' club. In the early

hours of 21 February he left the hospital

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rldlng his motor cycle and proceeded south

along Campbelltown Road."

While the applicant was so travelling in Campbelltown Road at

about 3.00 a.m. on Saturday, 21 February 1981, he was

involved in a traffic accident (the accident) in which he

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suffered serious head	injuries,	which	resulted	in	some
amnesia.

The applicant's claim was put to the Tribunal on

alternative bases. First, it was contended "that he was a

member of a special task force and that his duties as a

member of it were such that he was engaged in his employment

for the purpose of section 27 at all times, day and night, 2 4

hours a day, 7 days a week." There was conflicting evidence as to whether such a "special task force" ever existed and, if so, as to whether the applicant remained a member of it after 17 February 1981 when he was posted to Watsons Bay. The Tribunal consldered that, because of evidence as to the

applicant's belief, "he must be regarded as having been still

under the orders of his superior officers to comply with

[certain] instructions."	. .I
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The Tribunal made a finding of fact that:-

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"The task force or group had no function, except in an emergency. It did not even

undergo training as a group. The applicant II

was continuing to undertake his normal

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duties. He was rostered for^ duty in the

normal manner and, when he was not rostered f o r duty, he was free to leave his unit to go about his own business until the time

when he was again rostered for duty. The

only difference between hls situation and i

that of any other member of the Defence

Force was that he believed that he had to

keep his field equipment packed ready f o r

use and, whenever he left hls unit otherwise

than in the course of his rostered duty, he

was required to inform someone at the unit

of his whereabouts during his absence from

the unit . "

The Tribunal found that "the applicant's compliance

with the instructions given by Major Curran did not result in

his remaining in the course of his employment for 24 hours a

day, seven days a week". It was submitted on behalf of the

applicant that in so deciding the Tribunal erred in law by

reason of its application of the principles enunciated by the

High Court in The Commonwealth v Wright (1956) 96 CLR 536.

In our oplnion no such e r r o r of Law occurred and the Tribunal did not err in law in finding that the applicant was not in the course of his employment when the accident occurred.

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The alternative way in which the applicant's case to

the Tribunal was presented was:

basis that when the accident occurred, he was travelling his to

"on the

employment, as he was required to commence

work as telephone operator at Watsons Bay at

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8.00 a.m. on the morning of 21 February

1981, and also that he was travelling to his f .

place of employment and his period of

liberty, which started at about 4.00 p.m. on

20 February, would have ended at 8.00 a.m.

on 21 February when he started that work.

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So that by virtue either of section 32 or section 34(2)(a) it was, or 1s to be deemed to have been, a ~ourney to his employment

and so is to be treated as though it

constituted part of his employment by the

Commonwealth. "

As to the matters raised by those submissions, the

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Tribunal made the following findings:-

(a) the applicant's journey from his place of employment

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terminated at the hospital at Ingleburn; :, ,

(b) at the time when the accident happened, the applicant

had departed from Ingleburn and was travelling to

Campbelltown for something to eat;

(C) when he travelled from the hospital at Ingleburn

towards Campbelltown he was engaged in a separate journey;

(a) the applicant intended to return to Watsons Bay that

night, after he had had something to eat in Campbelltown, and I .

to travel directly from Campbelltown without returning to the

hospital at Ingleburn;

(e) the applicant had not been rostered to attend for duty at Watsons Bay on Saturday 21 February 1981.

On those findings, in our opinion, the Tribunal did

not err in law in deciding that, at the time when the

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accident occurred, the applicant was not on a journey to his	I
employment. Nor did the Tribunal err in deciding that, at the time of the accident, the applicant was not on a journey

from his employment. Moreover the Tribunal's finding in	( e )	I .
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above that the applicant was not rostered to attend for duty	; :
on 21 February 1981 precluded a conclusion that his journey was deemed, pursuant to S. 34(2)(a), to have been a journey to his employment. Secondly the journey on which the

applicant was engaged between Ingleburn and Campbelltown

could not have been deemed, pursuant to S. 34(2)(b), to have

! been a journey from his employment because the exclusion

contained in S. 35(2) operated by reason of the Tribunal's

finding in (c) above that it was a separate, and, therefore,	.. ,
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a second, journey in the prescribed period between 4.00 p.m.	I
on 20 February and 9.00 a.m. on 21 February.
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! The remaining ground of the appeal was that the

Tribunal misdirected itself as to the weight of the evidence I. .

I	led on behalf of the respondent in respect of the duty roster for the morning of 21 February 1981 but in our opinion there is no substance in that ground. No such challenge was made
to any of the other findings of fact.
As the applicant has failed to demonstrate any error of law by the Tribunal, the appeal must be dismissed and the
applicant ordered to pay the costs of the respondent.
I certify that this and the preceding
five pages are a true copy of the Reasons
for Judgment herein of the Court.

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Associate: ,?/c

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I	I	C
Dates of Hearing : 15 L 16 June, 1987
Counsel for the Applicant : MT. B. Monotti
Solicitors for the Applicant : Messrs. Martin, Clardullo &

CO.

Counsel for the Respondent : M T . J. Lenczner

Solicitors f o r the Respondent	:	Australian	Government
Solicitor

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