Comcare v PVYW

[2013] HCATrans 169

[2013] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S98 of 2013

B e t w e e n -

COMCARE

Appellant

and

PVYW

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 2013, AT 10.20 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR T.M. HOWE, QC and MR A.P. BERGER for the appellant.  (instructed by Sparke Helmore Lawyers)

MR L.T. GREY:   May it please the Court, I appear with my learned friend, MR J.P. MRSIC, for the respondent.  (instructed by Pappas J Attorney)

MR GLEESON:   Your Honours will see from our outline that the order I had proposed was to commence with some observations on the statutory language, then dealing some close analysis with the two critical decisions of the Court prior to Hatzimanolis, that is Oliver 1962 and Danvers 1969.  Then, analyse Hatzimanolis itself with a view to the key proposition that it does not stand for the principle which the Full Court discerned from it, that is, it does not stand for the principle that mere presence at a place where the employer has encouraged, induced or required one to be, establishes compensation for injuries there suffered absent gross misconduct. 

Then, finally, argue that it was open in law to the Tribunal to reach the conclusion that this injury was not compensable under the statute.  Your Honours, if that is convenient, could I invite the Court to go to the statutory language, the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth under section 14(1):

Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. 

There are exceptions under subsections (2) and (3).  Might I just observe there that the exceptions under subsection (2) and (3) are exceptions to the liability to pay compensation, not as the respondent has suggested, exceptions to whether conduct is in the course of employment.  The definition of injury in section 5A(1), particularly paragraph (b), is:

an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment ‑

Remaining with that language for a moment, the starting point is to identify an injury suffered by the claimant which meets the description of a physical or a mental injury.  In the present case, the injury was a laceration to the face, being hit by a falling light – that is a physical injury – and a subsequent psychological injury which developed.  If the suffering of injury is one bookend within the definition, the other bookend is to identify the employment of the employee so far as might be relevant to that suffering of injury and in the present case the employment was such that the Commonwealth required the respondent to travel to a regional town and stay overnight in order to be available for a work meeting the next day.

More specifically, although I have to come back to its relevance, the Commonwealth booked and paid for the hotel room in which the employee spent that night.  Between the two bookends of injury and employment are the connecting factors, and they are one of two.  Either that the injury arises out of the employment or it arises in the course of the employment.

Your Honours, there are three matters from the ample case law that we do not dispute about those connecting factors.  The first is that the limbs are alternatives under this form of language, and under the language which dates back to the 1940s in the Commonwealth Act, and in the New South Wales Act for that matter.  The second is that the first limb connotes a notion of cause, a causal relationship between the suffering of injury and the employment, whereas the second limb invokes a notion of time – the injury is suffered at a time when the employee is doing something which can sensibly be said to invoke the employment relation.  The third matter, which follows from the second, is that the second limb does not a have suppressed notion of causation within it ‑ ‑ ‑

HAYNE J:   Sorry, the second does?

MR GLEESON:   Does not have a suppressed notion of causation in it, and arguments which attempt to do that are fallacious.  Justice Dixon in the majority made that clear in Kavanagh in the context of an injury at work.

CRENNAN J:   Well, there seems to be an emphasis in the cases on sufficiency of the connection between injury and employment, not on matters of causation in relation to this second limb.

MR GLEESON:   Yes, and the emphasis is on what was the employee doing or not doing at the point injury was suffered, and what is the sufficiency of connection between that and the employment relation.  In answering that question of sufficiency, the modern cases, as they are described in Hatzimanolis, move beyond either a literal or restrained attention to “were you doing something which was your duty” to a broader approach which says it could be that or it could be something which either the practical necessities of the employment relation or the mutual expectations of the employment relation led to you doing or not doing that in question.

GAGELER J:   So it is a sufficiency of the connection between the activity being undertaken at the time of injury and the employment.  Is that the way you put it?

MR GLEESON:   Yes, the thing that you are doing or not doing at the time of the injury being suffered and the employment relation.  Now, the thing may be something in the course of a larger activity.  So in the case of Oliver the activity is appropriately described as “I am playing cricket at lunch on the apron next to the employer’s hangar in the course of which I run forward to pick up a ball and I trip over a mounting on the ground and I suffer an injury”.  So that is a case where activity is a useful way to identify what it is you are doing at the time of the injury being suffered.

In the case of Danvers, what the person is doing is sleeping.  “I am sleeping in a van provided by the employer for my accommodation at a time when a fire breaks out and incinerates me.”  The connection is between, in the Oliver example, the playing of cricket in that manner and the employment relation.  In the case of Danvers, it is the connection between sleeping in the van in that manner and the employment relation.  So that the thing you are doing is not to be identified too narrowly because that would mistake the inquiry. 

Another example is Henderson where the thing being done was characterised as crossing the railway line from the work site to the employer‑provided camp at a time of break.  The particular injury was suffered, being in a very particular place, being on the railway line as the unfortunate train arrived and hit the person, but the relevant thing there was characterised as travelling from work site to work related camp.

CRENNAN J:   Is it really a thing?  It is an activity still, is it not?

MR GLEESON:   It is an activity.  The only reason I went to the three examples, and I was ‑ ‑ ‑

CRENNAN J:   I think I know why you are avoiding, or perhaps preferring to use “thing” in this context, but you can have an activity which is a subset of some other activity or occurs within the course of some other activity, your example of the cricket match in moving forward.  The latter is not a thing really, is it, it is still an activity?

MR GLEESON:    I have no difficulty with it being an activity.  I was only seeking to perhaps against ourselves accept that no narrow view should be taken of how one characterises it, and too narrow a view of what you are doing might cause you not to recognise a relevant connection.  So, for example, in Henderson, the narrower view of what you were doing was, “I was on the railway line at a point when the train hit me because I had chosen to take a dangerous path of crossing the railway line, contrary to my employer’s instruction, and when the available safe way of doing it was to go to the bridge a little bit further down the line”. 

If one identified the activity that narrowly, then the connection would appear far more remote.  So I am accepting, in the light of the modern cases, that the approach to identify what you are doing – call it activity, call it thing – is one that is not to be done narrowly.  It is to be done broadly and practically, but having in mind, as I have said, the practical necessities of the employment and the mutual expectations of that relation.

MR GLEESON:   Yes.  There are three elements.  There is the uncontroversial construction, which of course is pure law.  At the other end there are primary facts which are found, to the extent to they are available to be found, and that is a point where we differ on the analysis of Danvers, which I will come to, but in the middle it probably is mixed fact and law, your Honour, because the nature of the evaluation as to the sufficiency of the connection cannot but involve that degree of evaluation. 

Now, it is coloured by this, that in most statutes, including this one under section 44 of the Administrative Appeals Tribunal Act, the appeal is on a question of law and so it is whether it was open to find the conclusion on the primary findings of fact and, to that extent, we would certainly be commending, when I come to the final part of the submissions, that it was open to reach the evaluation and to the extent that the evaluation involved questions of mixed fact and law, it was within that range that was open to a tribunal and that is enough to sustain the ultimate ‑ ‑ ‑

GAGELER J:   Do you not have to go further?  Do you not have to say that the Tribunal applied the correct legal test?

MR GLEESON:   Yes, must do that.  I was accepting with that, with the first part that to the extent there is a construction involved it must be the correct construction.  There is no challenge to the findings of primary fact in this case.  The challenge is really in this case that was at the level of the point your Honour mentioned, namely the correct construction because the proposition of law accepted by the Full Court, accepted not quite as definitively by the trial judge, but in parts accepted as definitively, was that once you are at a place where the employer encouraged, required or induced you to be, then absent gross misconduct, any injury you suffer at the place is compensable, whereas the moment you step outside the place, however you define the place, the injury and compensability is then open to the more usual factually intense inquiry where time, place, circumstance, practice, conditions of employment all become critical.

That is the proposition of law which the Full Court has discerned from Hatzimanolis, that in the place case so defined the inquiry becomes a confined one.  If it is not a place case it becomes an activity case and you then can conduct the richer inquiry into the sufficiency of connection.  Our appeal point is that that is a misreading of Hatzimanolis and it is wrong in law, it is wrong under the statute, and put at its most simple, under the temporal limb we are seeking to measure a connection between something the employee is doing, perhaps viewed as activity, and the employment relation, and in that exercise time may be measured, more or less, in different cases by factors such as place, activity, practice, conditions of employment, and each of those factors will be given the weight it deserves on the circumstances of the particular case in coming up with the ultimate judgement. 

There may be some cases where presence at place will carry a very strong, perhaps almost overwhelming emphasis in the evaluative exercise.  Danvers meets that description because in Danvers the findings of fact being the worker was doing nothing other than sleeping in the employer‑provided van at a time he was expected to be sleeping, the question simply became whether being at that place for that purpose was sufficiently within the practical necessities of the employment relation, answered yes by the High Court. 

In other cases, place will not take an absolutely definitive role in the evaluative exercise – take Oliver.  In Oliver, place was clearly important.  The employee was on the employer’s premises, the apron next to the hangar under a place of control and was there at a time, the lunch hour, when it was not realistic to leave the premises, but that was not the whole of the reason for the finding of compensability.  The extra fact was that the activity, the cricket game, was a practice recognised, encouraged and approved by the employer.

In other cases, place will take an even smaller role in the overall evaluative exercise, and I might just contrast Hatzimanolis there, where in Hatzimanolis the employer of course says to the employee “Go and work in Mount Newman”, which means the employee will be in Mount Newman or the surrounding area pretty much all the time.  The injury occurs when the worker is in the car, which overturns on the road on the trip to Wittenoom. 

Now, to ask whether at the time of the injury you were at a place which was approved is not highly illuminating in those circumstances.  In the broad sense, you are in the Mount Newman area, which is the place you are expected to be, but what really explains that injury is “I was on an outing”.  So the question became very much an activity‑focused question, was the outing of going to Mount Newman one organised and arranged by the employer?  Answer, yes.  Therefore, the connection was satisfied.

Just those three examples I have given we suggest would indicate that the significance to be given to the authorisation or encouragement of the place, or on the other hand the activity, will be an essential part of the evaluative exercise but will vary from case to case, and what should not be erected is a rigid rule that if the place is authorised, then you ask no further questions other than gross misconduct. 

Just before I resume the submissions, I might mention the judgment your Honour Justice Kiefel dealt with in Comcare v Mather many years ago, where of course there were elements of place and activity involved.  The injury occurred when the personnel were not in the precise barracks or camp, but when they were travelling on the road back from a nearby place of recreation and enjoyment where they had been engaging in an activity which the employer sanctioned and encouraged for reasons of morale, et cetera. 

Your Honour’s judgment attended both to the circumstances of place, circumstances of the activity and in one place your Honour framed it in a way which we embrace which is ultimately asking whether what was happening was sufficiently within the ambit of the employment relationship.  That language, we suggest, allows for a sufficiently flexible examination of all the factors rather than saying if I find that the very place you were on, the road, was an authorised place, I ask no further questions absent gross misconduct.

So, your Honours, just before I come to Oliver and Danvers in more detail than that hopefully not too high level discursus, could I just dwell for one moment on the difference between the causal limb and the temporal limb, still sticking with the statutory language but thinking of facts closer to the present case?  In the present case the respondent did not advance the causal limb, correctly so, but why that is correctly so – that is, the causal limb is not satisfied – is illuminating about the relationship between the two limbs.

If one was asking about the causal limb in the present case, one would have to say how was it that this injury was suffered and how did that as a causal matter relate to your employment?  Now, in that context the inquiry would have to involve attending to these facts.  The injury arose because of a choice by the respondent to use the hotel room booked and arranged by the employer as the occasion for a particular form of sexual activity which led to the light fitting being pulled from the wall, striking the respondent on the nose and mouth and lacerating her face, and immediately one would say, that is just causally too remote from the stay away from home for a night which the employer required the employee to do.  So for the purpose of the causal limb one would say no sufficient causal connection between the manner in which that injury was suffered and the employment relation.

What then does the temporal limb require one to consider which is different to the causal limb since they are alternative?  I would express it this way and it picks up what I have said earlier this morning in answer to some questions.  The question is this.  At the time the injury was suffered, that is, as the light fitting hit the respondent’s nose, and having regard to what the employee was doing, including the activity, was it meaningful to speak of the employment relationship being carried on?  If yes, then it is within the course of employment and there is a prima facie liability of compensation subject to section 14(2) and (3).

In deciding that question of connection, as I have said, no narrow view is taken, it does not have to be performance of a duty.  One can have regard to practical necessities and mutual expectations, but there must be a recognition that in some, perhaps many, cases the activity will involve an element of choice, real choice, choice to use the employment provided occasion to carry on a private activity which is none of the employer’s business and equally none of the employer’s responsibility by way of compensation.

Your Honours, I just note for completeness, section 6 of the Commonwealth Act which in a not identical form to many of the State Acts has in a non‑limiting fashion, identified a range of circumstances which will be treated as being – arising out of or in the course of employment.  Your Honours will notice that some of those circumstances involve particular places being used for particular purposes. 

For example, paragraphs (b), (e) and particularly (f)(i) to (vi).  Section 6 does not resolve this appeal because it is a non‑limiting provision, of course.  It is clearly enacted upon an assumption that it is useful to identify that being in particular places for particular purposes will satisfy the relevant connection.  The manner in which, on our argument, section 6 ‑ ‑ ‑

HAYNE J:   Sorry, what was that last point?  What does 6 do, do you say?

MR GLEESON:   It indicates, in particular circumstances, being in a particular place for an identified purpose will satisfy one or other of the limbs.

HAYNE J:   But whether it does that by way of expanding what otherwise would be within or explaining what otherwise would be within is ‑ ‑ ‑

MR GLEESON:   Neither here nor there, your Honour.

HAYNE J:   Well, left unanswered by the proposition.

MR GLEESON:   Yes.  So, I am not putting a submission that section 6, as it were, affirmatively takes out construction of section 5 forward.  I am drawing attention to it and simply indicating, as a matter of harmonious construction, if we are correct, the way in which it works is, within the definition in section 5A of injury, one does not have the rigid rule, if I can call it that, which the Full Court has discerned.  One can have regard to place in the more nuanced way I have mentioned and that can be true of any injury and any place, and then section 6 sits harmoniously with that by saying for particular places and particular purposes, you need look no further.

FRENCH CJ:   What work does the word “may” do there?

MR GLEESON:   Just to confirm the non‑limiting nature of section 6 relative to section 5A, that in every case the fuller inquiry under section 5A will be available, but in these particular identified cases, if you are in this place and for this identified purpose, look no further. 

FRENCH CJ:   That gets you pretty close to “shall”, does it not?

MR GLEESON:   Yes.

KIEFEL J:   There is one reference in section 6(1) to undertaking an activity.  In paragraph (c), it refers to an employee:

undertaking an activity:

(i)associated with the employee’s employment; or

(ii)at the direction or request of the Commonwealth –

Do you make anything of that?

MR GLEESON:   Again it has not covered the entire field.

KIEFEL J:   But it has that nexus, sub – sub‑paragraph (i) has the nexus you are referring to.

MR GLEESON:   Yes, it does.

KIEFEL J:   So does the directional request they ‑ ‑ ‑

MR GLEESON:   Yes, as it were, it has taken ‑ ‑ ‑

KIEFEL J:   And might reflect the earlier authorities.

MR GLEESON:   Yes.  It will not cover every authorised activity case.  It is not as broad as Hatzimanolis but it will cover temporary absence. 

KIEFEL J:   But it is consistent.

MR GLEESON:   It is consistent. 

KIEFEL J:   When was section 6(1)(c) inserted, do you know?

MR GLEESON:   I will check, your Honour.  The section 6 in general came in in the 1988 Act and I will check that (c) came in with the original Act.  With activity of that type it draws that nexus, and with the place provisions each of them also has a purpose nexus to it, and that also confirms not only common sense but our argument that being at a place will have to carry with it some form of purposeful inquiry.  You are never at a place for no reason.  You are always at a place for a reason and what the earlier cases and Hatzimanolis had in mind under the place limb, if it is a limb, is a case where you are at the place for the purpose and no other for which the employer required you to be there to further the employment relation.

Could I invite your Honours then to go to Oliver (1962) 107 CLR 353, and the critical facts which established the liability of compensation and the judgment of Chief Justice Dixon is set out at 354.8 to 355.3. They involve both those elements I mentioned earlier; being at the particular place, the employer’s premises, at a particular time, the lunch hour when it was unrealistic to leave. But most critically, as his Honour identified at 355.2 to 3, the most important of the additional facts was having regard to a number of matters:

employees would, as a matter of course, remain on the premises during the interval and it was a recognized practice to play some game during the interval. 

The significance of that authorisation of the activity as opposed to merely being at the place, his Honour at page 358 at point 8 returns to as critical to the reasoning in the decision.  It is because of those combined factors, the authorised place plus the authorised activity, that his Honour was then able on 359 to say therefore it does not matter, it was the game, and his Honour cites Kavanagh.

BELL J:   I thought the activity was not authorised, but the prohibition on it was not enforced.

MR GLEESON:   Your Honour is correct.  I put it too strongly.  The activity was not authorised.  The prohibition was not enforced, but the additional element was the recognised practice to play some game in the interval; that is the way his Honour put it at 355 point 3 and that is why I draw attention at the bottom of 358 to, not just “you are not expected to leave the premises for lunch”, but there was a custom of “playing for a time during the thirty minutes allowed for lunch” was a recognised practice, so ‑ ‑ ‑

BELL J:   Some form of encouragement, you would say.

MR GLEESON:   Some form, some form of knowledge that this is what the employees were doing on the premises whether I put a sign up to say not to do it, and some form of approval by way of not actually enforcing the prohibition, and it is for that reason on 359, when his Honour says, “notwithstanding it arose from a game”, it probably has within it the pregnant proposition, “Well, ordinarily, if you are just playing games, you are doing your own thing, and ordinarily, games are not part of the employment relation”.  That is your own choice whether to play a game or not, but there can be circumstances where a private activity is sufficiently brought within, in this case, the mutual expectations of the employment relation as we would put it.

KIEFEL J:   I think earlier in the reasons at page 356, the Chief Justice refers to, at about point 3, referring to what Lord Loreburn had said that:

“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 –

That is your expectation.  The point his Honour seems to be addressing, if one looks at about line 7 or 8 and then at about point 6, is the sufficiency - whether or not something is sufficiently within the sphere of a man’s employment, so this would appear to be consistent with taking into account the conditions and nature of employment ‑ ‑ ‑

MR GLEESON:   Yes.

KIEFEL J:   Which is referred to in the rider in Hatzimanolis and the expectations of what would normally be conducted.

MR GLEESON:   Yes, no narrow view being taken, of course, one looking at mutual expectations and practical necessities.

HAYNE J:   The phrase, “mutual expectations”, is that intended to be a bare statement of prediction, that is to say, what people might expect in the sense of “predict”, or is it mutual expectation in the sense of mutual expectations of employment such, for example, as that the employee will present for work next day, well‑groomed and turned out, had a shower at the motel, to the point where, if the employee slips in the shower, perhaps that may be in the course of employment.

MR GLEESON:   The latter, including what your Honour determined from the latter.

HAYNE J:   Namely, mutual expectations of employment.

MR GLEESON:   That is where what the court described as “the modern cases”, that is where the critical step was taken that we do not urge a retreat from.  In Danvers, the majority in the Court of Appeal took a view to sleep is something you do as a human being and you do on your own time.  Even if you are sleeping in the employer‑provided van you are just sleeping and if something happens while you are sleeping – and the same would be true for showering and the like – that is your own account.

Acting Chief Justice Wallace in the minority took a broader view, and then Chief Justice Barwick took it slightly further and said there can be certain ordinary activities, sleeping, it would cover showering and the like, where while ordinarily that is just on your own account there can be circumstances where it is sufficiently brought within the employment relation for it to be the employer’s liability as a matter of compensation. 

So if you are required to stay away from home, step one, you are then required to be in a particular town and a particular place and necessarily staying at a hotel, it is a matter of necessity that you will be turning up for work the next day properly fed, watered, showered and rested.  Those matters, as it were, go without saying.  The employer does not need to expressly say “Please do those things tomorrow morning” because they just go without saying.

Once one moves beyond the “go without saying” category to other activities in the area of private choice, e.g. “Do I go for a run every night at 7 o’clock, do I do 20 push‑ups in my room every night”, they are simply not within that area of presumed mutual expectations that go without saying.  They will be outside the employment relation absent something very specific and express said to bring them within the relation. 

So if the ADF says “We require all of our personnel to engage in one hour’s physical exercise every day as a condition of being able to be a well‑trained soldier, et cetera, and we further put parameters around the doing of that”, that could be a case where the private activity has been expressly brought within the mutual expectations.

KIEFEL J:   Is it preferable, perhaps, to refer to the expectation as an objectively considered expectation when one considers the nature and scope of the employment and what is reasonably required or expected in relation to it?  In The Commonwealth v Oliver at page 363, Justice Menzies, referring to other authorities, refers to the worker having lunch on his employer’s premises as:

“doing something which he was reasonably required, expected or authorized to do in order to carry out his duties” –

If someone is put in a place such as a motel because the employer has required the employee to be there overnight to do something the next day, it would perhaps fall within what his Honour there identified as an objective expectation that they would shower before they go to the meeting the next day.  So the connection with the employment and duties is made.  I note that his Honour at about seven lines from the bottom of page 363 refers to the “particular intrinsic connexion with work”.  The word “connexion” appears in the older authorities quite regularly, I think, in connection with the incidents of - incidental to employment criterion.

MR GLEESON:   Yes.  What your Honour has put is less crude than the way I put it, it just goes without saying, but that is the framework within which in most cases one will analyse what are the things which, if they occur at the place, they will have the connection with the employment relation.  I am then just recognising that there can be, as it were, the other category of case, where in the very particular employment relation by reason of things expressly communicated, activities which otherwise would be outside any ordinary employment relation, have been brought into the employment relation.  It is not our case, but there could be such cases in principle and depending on the nature of the work, e.g. the ADF, one can more readily see that private activities have been brought into the employment relation.

FRENCH CJ:   It might be trading one category of indeterminate reference for another.  If one is looking at an objective test as Justice Kiefel suggested, I wonder whether the word “expectation” is not too narrow; whether with some broader concept, what is contemplated by the employment relationship.  For example, extending the ADF piece, there are lots of employers who now encourage their employees, without requiring it, to undertake physical fitness activities of various kinds.  So it might be expected that, or it might be contemplated that somebody might go for a jog at night after work or something and if they are staying in a place to which the employer has sent them and they fall into a pothole and injure themselves, the question then might arise, is that within contemplation even if not on an objective basis, even if not expressly required or expected.

MR GLEESON:   Well, that situation will get closer to the line and will be quite a difficult one, but if the employer says it is my expectation, “If you want to work for me, I require a workforce who devote an hour a day to” ‑ ‑ ‑

HAYNE J:   Well, if you are to be ready to deploy ADF style, you have got to be fit.

MR GLEESON:   You have got to be fit.  Now, if that be the expectation and that is something you have got to do seven days a week just about ‑ ‑ ‑

FRENCH CJ:   I was putting a softer example on that obviously.

MR GLEESON:   Yes, but assume the slightly harder example, your Honour, you might then say, well, whether you then do that exercise at home, when you are at home running around the block or whether you do it when you are away from home, that is really accidental to the inquiry being conducted in that employment relationship.  The spending of an hour a day on physical activity wherever you be has been brought within the employment relation and then the employer might be liable if you slip over the pothole outside your front home.

GAGELER J:   Is not that just introducing a causal connection, but for the employment relationship?

MR GLEESON:   I trust not, your Honour.  What I was trying to put was, and it is not our case, I am trying to deal with another case.  I am trying to accept that there may be cases where in the particular employment relation, where one looks at the facts, it has been sufficiently brought within the things which the employee is expected to do, in order to carry on that function that certain forms of private activity be carried out.  I am not suggesting that would be general in the economy.  I am not suggesting it would be widespread, but it is possible to conceive of that case.

What we are trying to avoid is the reverse form of artificiality where on the decision of the Full Court, because the hotel room was booked for you, anything that happened in that room, short of gross misconduct, is the employer’s responsibility, irrespective of the relationship between that thing or that activity and the employment relation.  So if I am a person who does do 20 push ups every night at 7 o’clock and I do them in the hotel room in the regional town, I get compensation.  If I do them at home, I do not get compensation. 

Now that, we submit, is not just the result that lines have to be drawn, but that shows something has gone wrong in the application of the temporal limb if one reaches those sorts of results.  So although the present case is about sexual activity, it can equally be simply considered as my example of an exercise activity carried on in the hotel room, employer liable; carried on at home, employer not liable.

GAGELER J:   If I am eating a sandwich in my lunch hour at work and I choke, that is in the course of employment.  If I am eating the same sandwich at home and I choke in exactly the same way, then that is outside the course of employment, is it not?

MR GLEESON:   That is where the law stands.  One asks why, and the answer is in fact given in Speechley.  Could I actually go to Speechley, because it actually deals directly with your Honour’s question?

HAYNE J:   Just before you do, can I explore this presently unexplored notion of private activity?  What may be lying behind it, and I need you to explain it to me, is that the so‑called private activity is an activity at least in respect of which there is neither express nor implicit instruction from the employer, but is it an area defined not only by has not, is not expected to give instruction, is it more narrowly defined as an area in which the employer cannot give instruction? 

The physical fitness example is easy in the ADF case where physical fitness is an element of the task.  But take the employer who, for perfectly beneficent reasons, thinks a fitter workforce is a better workforce; I encourage you to engage in active physical activity, here is lots of pamphlets and instructions, et cetera, about how to do it.  Is the fact of encouragement enough?  How are you drawing this line of private activity?

MR GLEESON:   Well, your Honour, it is certainly the former proposition you put as a negative proposition.  If on the facts there has not been that form of direction, that will probably be enough to exclude it.

HAYNE J:   Direction or encouragement.

MR GLEESON:   Or encouragement.  But, your Honour’s question probably raises the further aspect which is this:  it will not always be within the ambit of the employment relation, contractual or otherwise, otherwise established for the employer to seek to give certain sorts of directions.  It would not be ‑ ‑ ‑

CRENNAN J:   But, there is a great deal of private activity about which the employer would be completely indifferent.

MR GLEESON:   (a) indifferent, and that is enough really for the proposition because with sexual activity our proposition is the employer, in this case, was indifference, ordinarily would be indifferent.  But going to the next step, could the employer actually have given detailed directions about this, when you go away on this trip, here are the rules?  Now, the instinctive answer to that is, no, because one is looking at a hypothetical giving of a direction which appears to (a) stray so far into what is one of the clearest examples of private choice, and I used the word “autonomy” on the special leave, and (b) something which the employment relation does not provide an occasion to allow one person to direct another over.

Now, one could imagine the most that might be lawful is the giving of negative instructions ‑ you are not to engage in the following identified activities which are shown to be likely to cause you to be unable to turn up for work or crime or other things ‑ but the notion that the employer would be giving positive directions on what sexual activity would be carried on in the hotel room, with who, in what manner is, we would say, outside what would be certainly proper but probably lawful under the employment relation.  So it does tend to confirm we are not just invoking privacy as a freestanding undefined concept.

CRENNAN J:   Perhaps, in a sense, the implied encouragement idea in relation to sufficiently connected private activities, your practical necessities point, is, in a sense, a distraction.  That really the question is a negative one that needs to be asked, which is whether the private activity is so far removed from the employment as contemplated by the worker and the employer as to be excluded from ….. within the course of employment, which is picking up on the formulation that the Chief Justice was putting to you about right question to ask, in a sense.

MR GLEESON:   Yes, I accept that, your Honour.  So where I wanted to go was – just so I have left Oliver, I did need to draw your Honours’ attention to the judgment of Justice Menzies at page 360 at the top.  Just going back to your Honour Justice Bell’s earlier question in terms of the findings of the employer’s knowledge or encouragement of the practice, that is the primary finding that his Honour made there, it was “countenanced, if not encouraged, by the Commonwealth”.  Then at 365 at the top in the actual decision, it is the practice of the employer to encourage the interval to be spent in recreational activities, which is the critical matter which founds the decision, not just the fact it occurred at the place he was expected to be.

Your Honours will have observed that one of the critical differences between us and the respondent is that in the respondent’s submissions at paragraph 30 in the last sentence the respondent says, well, Oliver should be read or perhaps was read by Hatzimanolis as removing the finding of the encouragement of the practice and just focusing upon the fact it occurred at an authorised place, and that we submit does no justice to Oliver and Hatzimanolis did not interpret Oliver in that fashion.

Could I then divert slightly to Speechley, coming back to your Honour Justice Gageler’s question?  We have provided a copy of Humphrey Earl v Speechley (1951) 84 CLR 126, and this could crudely be described as the long lunch case, but it comes back to your Honour’s question about the sandwich. At page 134 in the judgment of Justice Dixon, he starts with the proposition of how do we characterise eating lunch, and says it is:

not in itself a thing which is done for the purpose of his duties.  It is the satisfaction of a recurrent human want -

Therefore if I eat my sandwich at home the employer is not liable.

But the conditions of the employment may be such as to make the obtaining and consumption of a meal something reasonably incidental to the performance of the actual duties.

Well, in circumstances where it is either not practicable to leave the workplace during the lunch hour or at least reasonable not to leave it, the consumption of a sandwich at the desk will be brought within the employment relation.  Then, dropping down a sentence:

The question is whether the course –

that is, the particular course –

adopted by the employee was reasonably incidental to the performance on that occasion of his duties.  This cannot be stretched to make everything he chooses to do during the interval he takes for lunch incidental to his employment.  If he so far deviates from what is reasonably incident to the execution of his duties as to proceed on a purpose of his own not fairly resulting from the nature or incidents of the employment, that purpose cannot be considered in the course of the employment.

Now, many of the cases in this theme of “you are on your own account” have adopted this proposition from Speechley as a dividing line and it is one that we commend is still good law.  Even if the Court in Hatzimanolis expressed some dislike for the language of “incidental”, which is in Speechley, and tried to reformulate that in the organising principle nothing the Court was doing was, we submit, removing this commonsense proposition that there can be occasions where you use the work‑related occasion to revert to what is essentially the conduct of your private choices. 

Although it is a matter of fact and degree, this was a case where the lunchbreak was used for what was something remote, to use your Honour Justice Kiefel’s word, remote from the employment relation.  Interestingly, in that case Justice McTiernan - at page 138 - who I might say took perhaps the broadest view on these types of cases over many years in the Court, he was also satisfied this was outside the course of employment.  At the foot of 138 he said:

The driving was from the beginning until it ended in the accident, in the course of an excursion which was entirely beyond the scope of the respondent’s employment.

He said over the page that it was:

an interruption in the day’s work which the respondent made for a purpose personal to him . . . and having no true connection with the respondent’s employment.

So, in the present case, the particular choice the particular choice the respondent made in the hotel room, which resulted in the injury, we would put simply used the occasion of a work‑related stay for a purpose, in every sense, personal to him, “personal” is perhaps a better word than “private”, personal to him, having no true connection with the employment with the Commonwealth and that adequately resolves the case. 

FRENCH CJ:   But if you slip in the shower at the motel or you get food poisoning from a meal at the motel booked for you by the employer that is all within the field of contemplation, you would accept that, of the employment relationship?

MR GLEESON:   Yes, and the cases have well and truly established that and, in principle, in the approach that has now been there for 50 years, that should not be unwound.  Your Honours, that is Oliver, a strong authority that mere presence of place does not exhaust or limit the inquiry.  Could I then go to the other critical case, Danvers (1969) 122 CLR 529? The critical findings of fact are on page 533, points 1 to 5 and then at the foot of that same page.

It was a case where the employer provided the railway van for use as a dormitory.  The employer expected that in the ordinary course the employee would sleep there at night.  So that is where we see the mutual expectation of the employment relation.  You will use this as a dormitory to sleep in the ordinary course. 

Then, the other critical fact is at the foot of 533 where, as his Honour analysed the facts at first instance in the commission, the appropriate inference was he was doing nothing other than sleeping, no suggestion he was smoking or doing anything else which contributed to the injury.  That is the other critical point where we differ from the respondent in the analysis of this case.  The respondent says Danvers should be treated as a case where there would have been liability, even if he was smoking and the smoking caused the fire because, says the respondent, the only relevant fact is he was at the place he was expected to be.  That does no justice to the reasoning of Chief Justice Barwick.

Now, on 534 in the middle, the majority judgment from the Court of Appeal is set out and that is to the effect I earlier summarised.  I do not ask your Honours to go to it but we have given you a copy of the Court of Appeal judgment.  That reflects what might be called the old‑fashioned view.  Sleeping is your own business and even if it is in a van provided by the employer, it remains your own business and cannot be in the course of employment. 

The Court sees beneath that that the President, who was in the majority, considered that sleeping in the van was reasonably incidental to the employment, so that is consistent with Chief Justice Barwick but the President thought that it needed to go back for a remitter to find more facts on how the injury occurred.  Chief Justice Barwick, as we see on 535, which is the critical passage we rely upon, held that a remitter was not necessary because sufficient facts were adequately found and that ties back to his critical inference of fact on 533 that the claimant was doing nothing other than sleeping in the van.  So his Honour said on 535:

No doubt even when a workman’s presence at some particular place at or in which he has no duty to perform for his employer is in the circumstances of his employment incident to that employment, every injury sustained by him at the place will not be compensable.

That is the correct acceptance that mere presence at place does not exhaust the inquiry –

But in this case there is no room for any finding that the deceased at the time of the receipt of his injury was doing any particular thing which caused or contributed to that injury. Nor could any finding of misconduct be made adversely to him –

Coming back to your Honour Justice Gageler’s question, that is not to introduce a notion of cause into the temporal limb.  It is simply saying that where to understand how the injury was suffered one needs to know that you were doing something which caused or contributed to the fire you would have to ask whether the doing of that thing or the carrying out of that activity was itself connected with the employment relation.  You could not exclude it from the inquiry.

The critical reason that his Honour says we do not need a remitter is that once I accept that there are no facts to be known here other than you were sleeping, then we can just get to the main question which is whether is sleeping in the van a use of the van in the course of employment?  That is what is said in the balance of this paragraph.

So, in what, with respect, is a very careful and appropriately written judgment, his Honour has, as it were, cleared away a factual question that is unnecessary, therefore cleared away any need for remitter, then gone to the ultimate question in this case, is sleeping in the van something done in the course of employment?  What the respondent would have you do is to say ignore page 535, treat this case as if the worker had been smoking and had caused the fire, and nevertheless find that because he was invited to be in the van, everything that thereafter followed was in the course of employment.  That is the critical error in the respondent’s submissions and in the Full Court’s judgment.

Your Honours, as far as we can tell, Danvers is the key case which the Court in Hatzimanolis had in mind in talking about the place sub‑limb.  It appears to be the case where place was given such emphasis in the analysis, but emphasis subject to the qualification I have mentioned.  If I could go over to page 536, at about point 4, Chief Justice Barwick drew assistance from what Justice Dixon had said in Henderson, and the passage excerpted from Henderson speaks of place, that is, what is incidental to the work:

may include being at a place at which the workman’s presence “is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment”.

Then, of course, his Honour goes onto say you must apply this liberally.  That seems to be the origin of – there is a sub-category of cases, one should not draw precise divisions, where place becomes a very important and perhaps overwhelming factor in the evaluative exercise, but they are cases where you are doing nothing other than using the place for the employment‑related purpose for which you are asked to be there.

When his Honour then goes onto the liberal and practical approach to the test, he mentions a number of times the concept of real choice.  He says for example, at the foot of 536 that there can be cases where your being in the van is a result of a real choice between the employer‑provided accommodation and other accommodation, and that real choice might mean that the employer’s accommodation does not extend the ambit of employment, but he notes the choice must be real.

Your Honours will see on 537, at about point 3, his Honour derived considerable assistance from the approach of Justice Crisp in a Tasmanian case, Jones v Attorney-General, and later on Justice Windeyer at 544.6, also found that judgment extremely helpful.  We have given your Honours a copy of Crisp, and it really does confirm very much of what Chief Justice Barwick and Justice Windeyer had in mind in this analysis.

GAGELER J:   Just before you go to Crisp, just staying with Danvers for a moment, if Mr Danvers had not simply been sleeping in the van, but if he had been engaged in sexual activity in the van at the time of the fire, unrelated to the cause of the fire, then would it follow from your submissions that he would not be compensated?

MR GLEESON:   We have considered that question, your Honour, and the direct answer to the question is, he would still be compensated but under the causal limb.

GAGELER J:   This goes back to the question of how your temporal limb is truly a temporal limb and not a causal limb.

MR GLEESON:   There are two logical ways in which your Honour’s question could be answered.  If I do something which is really using the occasion of a work‑related stay to engage in something which is a purpose personal to me, to use the language of the earlier case, there is two ways to analyse that.  The first way is to analyse it and say, “I am thereby, for such time as I pursue the private purpose, outside the course of employment.  I still have the protection of the causal limb.”

So that if the reason he dies in the van is that a fire breaks out through a cause in no way related to him, he would succeed on the causal limb because the employer invited him to be in the van.  Being in the van had created the risk which led to the fire which led to the death; and that I am putting as the preferable way of viewing it, which is, at any point in time, you are either in or out of the temporal limb.

The other possible way of looking at it, which is perhaps a little Jesuitical, is to say, at any one point in time, for certain purposes, you can be in or out of the limb.  So, at the one point of time, for the purpose of carrying out the sexual activity it is outside the temporal limb, but for the purpose of simply being a person in the van is within the temporal limb and that would give you the same result as to ultimate compensation.

FRENCH CJ:   If you have a married couple in married quarters provided at a remote location by the employer, and it might be a mining site or something, and an accident of the kind that occurs in this case occurs, that is still in the private space even though it is within the temporal limb in terms of the employee is on the premises provide by the employer?

MR GLEESON:   The mutual expectation, to use that word, arising from the nature of the accommodation provided, the answer to your Honour’s question is, yes, that would probably be, on all the facts, within the temporal limb.  So, I have attempted, your Honour, to answer your Honour’s question by saying, in the example you gave he would no doubt be protected by the causal limb and would receive compensation.

GAGELER J:   Well, is that saying that Danvers ought to have been decided on the causal limb?

MR GLEESON:   No, because on the facts of Danvers he is only using a place for the purpose for which that place was provided to him, sleeping, that being the critical fact.  Your Honour’s example to me was sex in the hotel ‑ ‑ ‑

GAGELER J:   I understood Danvers to have been decided on the temporal limb.

MR GLEESON:   Correct.

GAGELER J:   I asked you to change the facts in Danvers just slightly so that instead of sleeping Mr Danvers was undertaking a sexual activity at the time of the fire.  Just staying with the temporal limb, what difference, if any, does that make to the outcome?

MR GLEESON:   The answer to that question, as I said to your Honour, which does involve a Jesuitical notion, is:  do you, in those circumstances, say for different purposes I can, at the one point in time be both within the temporal limb and without the temporal limb, which seems like a little elaborate and complicated way of viewing it, or does one say, at one point in time I can only be in or out, and if engage in an activity for a purpose personal to me I have taken myself outside the protection of the temporal limb and I am left with whatever protection I get under the causal limb.  What I put to your Honour is:  the better to that question is, you are outside the temporal limb and you are left with the protection of the causal limb, but I am acknowledging that the other answer is another way of viewing it.

KIEFEL J:   But, is not the answer provided by the fact that he is in the place that he’s employer required him or expected him to be, and the fact that he is undertaking sexual activity is nothing to do with the injury that he suffers, it is by the by.

MR GLEESON:   I am acknowledging that is an available view, that is what I am putting as the alternative view, and if that is correct, on these modified facts he satisfies both the temporal limb and he would satisfy the causal limb, so you will get the same result.

KIEFEL J:   Danvers is not an activity case, it is a place case.

MR GLEESON:   Danvers is a place case because he is only using the place for the work‑related purpose for which he was invited to be there, and therefore in Danvers he satisfies the temporal limb.

HAYNE J:   What do you say then about what Justice Windeyer writes in Danvers at 544 in the last seven lines?

MR GLEESON:   That it is correct.  What it does is draw out more expressly the purpose notion which is there in Chief Justice Barwick’s approach, but purpose has been drawn out far more squarely that I am in the course of employment, if and to the extent that I am using the employer‑provided premises for the very purpose for which it was made available to me and at a time when I might be expected to do so.  So His Honour has correctly, we would submit, drawn out place, purpose, time and that is what brings it within the course of employment.

Interestingly, His Honour’s proviso in the last two sentences on 545, in effect, recognise Chief Justice Barwick’s qualification that there can be cases where what you are doing by way of purpose, relative to the premises, has taken you outside the employer identified purpose into a person purpose and in those cases you may not be in the course of employment.

BELL J:   Can I take you back to the married quarters at the mining camp?  I think you accepted that in that circumstance where married quarters have been provided, a circumstance such as occurred here might none the less be compensable. Did I understand that correctly?

MR GLEESON:   That is what I said, your Honour.

KIEFEL J:   I was a little bit surprised by that concession, because what is the connection between the worker’s employment and what was being undertaken at the time that they were injured?  There is not any.  It cannot be reasonably expected by the employer.  It might be expected that in the normal course of life this will occur, but what is the connection with the conditions of employment?

MR GLEESON:   Well, I am told by Mr Howe who knows everything in this area the answer I gave was wrong.  I seek to withdraw it.

GAGELER J:   Well, can you give another answer in its place?

MR GLEESON:   Yes.  That the connection between the nature of the activity and the employment relation which is to be furthered in the remote site where the worker is, is too remote and that is a matter of proper characterisation; the carrying out of the activity remains the pursuit of a personal purpose.

GAGELER J:   So you are characterising the activity so as in turn to characterise the interval within which the activity is occurring so as in turn to determine whether or not the injury that occurs in that interval is in the course of employment.  Is that the process of reasoning?

MR GLEESON:   Yes, and that is consistent as a process at least with Hatzimanolis that the one big move that Hatzimanolis offered, which it said the previous cases had lacked, was to draw out what it regarded as a supressed proposition, that it can be highly relevant but not determinative to know whether the injury occurs in an interval within a single period of work as opposed to an interval between two periods of work, and that is one step in the Hatzimanolis analysis.  In this case, Comcare has accepted that it is appropriate to regard it as a single episode of work, going to the regional town, staying overnight, turning up for work the next day.  So that is one step in the analysis.

Hatzimanolis then said not every interval within an overall period of work will be such as to lead to compensable injury.  It then said, well, the extra element is to focus on the encouragement or the inducement to spend that interval at a particular place or in a particular way.  The particular way limb, if one regards them as disjunctive, which we have expressed a slight hesitation about that being appropriate, is relatively easy because one looks at the nature of the encouragement, the inducement, the requirement to engage in the activity. 

The particular place sub‑limb, to the extent that it is a sub‑limb, we submit has Danvers in mind.  It is the case where the use I am making of the place, or as Justice Windeyer has said, the purpose for which I am devoting myself to the place is no more than the employment‑related purpose for which I was invited to be there.

In this case Comcare has accepted that it is appropriate to regard it as a single episode of work, going to the regional town, staying overnight, turning up for work next day, so that is one step in the analysis.  Hatzimanolis then said not every interval within an overall period of work will be such as to lead to compensable injury.  He then said the extra element is to focus on the encouragement or the inducement to spend that interval at a particular place or in a particular way. 

The particular way limb, if one regards them as disjunctive, which we have expressed a slight hesitation about that being appropriate, is relatively easy because one looks at the nature of the encouragement, the inducement, the requirement to engage in the activity.  The particular place sub‑limb to the extent it is a sub‑limb, we submit, has Danvers in mind.  It is the case where the use I am making of the place, or as Justice Windeyer said, the purpose for which I am devoting myself to the place is no more than the employment‑related purpose for which I was invited to be there.

GAGELER J:   The period of private activity is a period of interruption during which any injury, whatever its cause, will not be compensable?

MR GLEESON:   The answer to that is no, for two reasons.  Firstly, as I said, it may be compensable under the causal limb.  Secondly, I come back to what Justice Kiefel put to me, there are two ways of viewing the interruption notion, what I put as the second way, which might ultimately prove more attractive to your Honours, is to say that it is possible to be both in and out of the temporal limb at the same moment in time depending upon the purpose for which you are using the premises. 

You are outside the temporal limb to the extent you are engaging in the sexual activity which is unrelated to the employment relation.  You are inside the limb to the extent that you are simply in that room.  So if the ceiling falls and hits you on the head, the second way of viewing the temporal limb is that you satisfy the temporal limb and you do not need any further inquiry into the cause by which the ceiling fell.

Otherwise, it is difficult to see how one can measure that an interruption to a period when you are not required to do anything has taken place.  Now, I made reference to Bill Williams there, I did make some submissions in the written submissions about Bill Williams, that was a case, your Honour will recall, where Mr Williams was shot after an altercation where someone who took exception to the way that Mr Williams had been associating with his wife and accosted Mr Williams at his workplace during working hours.  If you compare that case with Favelle Mort v Murray, for example, in Mr Williams’ case there was an interruption to the employment caused by something that happen within a matter of a few minutes, even though Mr Murray was immediately beforehand carrying out duties at his workplace.

In Mr Murray’s case there appears to have been no inquiry necessary into what he was actually doing at any of the times in the course of everyday because one might think, if he was in a 24 hour a day call, 15 month period of employment there would have been many occasions when he was doing things that, on the test proposed by the appellant, would not leave him in the course of employment.  So, I simply make the point that Bill Williams is easily distinguishable simply because it is not dealing with an interval and it does not assist in determining whether there an inconsistency with an interval case because the difference between Bill Williams, for example, and the present case is that Mr Williams was required to carry out duties at the relevant time and the respondent in this case was not.  So, how do you compare whether there is be an interruption in a case where the person is required to carry out duties with an interruption in a case where the person is not?

GAGELER J:   Bill Williams, at 126 CLR 158, has in the judgment of Justice Stephen, a reference to the judgment of Justice Fullagar in Kavanagh.  There is a sentence in Justice Fullagar’s judgment that I would like your comment on, that is 103 CLR, the particular sentence is from page ‑ ‑ ‑

MR GREY:   Yes, I am just trying to get it, your Honour.  Excuse me, your Honour, I will just find it.  I am sorry, your Honour, I am having trouble putting my finger on it.

GAGELER J:   I can come back to it later.

MR GREY:   Thank you, your Honour.  So we say that Hatzimanolis accurately states the test that the principles behind the test can be conveniently summarised in (a) the desire to avoid all of those criticisms – I am sorry, your Honour, I have Bill Williams, if I can come back as soon as I just make this point – first of all the test implements the desire of the Court to move away from the kind of strained interpretations and fine distinctions of the past into something that is practically useable.

HAYNE J:   I rather do think that would the fourth, possibly the fifth or sixth time you have made that point.  It is a point I think even I have grasped is a point you wish to make.

MR GREY:   Yes, your Honour, I am sorry.  I apologise for repeating it and it will be the last time.  We also say that the test applies in the present case in a way that shows a very simple analysis.  It does not involve anything complicated about analysing the facts of the present case and that seems to be what the Court was intending.  If one accepts that the test is as I have submitted it is, then it follows that the attitude of the employer to the activities undertaken by the respondent during the interval was not relevant in the absence of misconduct, and that if the employer’s attitude had been relevant, then we submit the Tribunal was not entitled to infer anything about what the employer could foresee or thought about the respondent’s possible plans for the evening in the absence of specific evidence from the employer about its attitude. 

The problem we have with what the Tribunal did, and it was one of the grounds that we raised with Justice Nicholas was that there was no evidence about those subjects.  The Tribunal effectively substituted its own inferences as to what the employer thought in substitution of actual evidence and Justice Nicholas agreed.  He also found that there was no evidence that sexual activity was in any respect incompatible with the nature or conditions of the respondent’s employment. 

That is at page 50 of the appeal book, and essentially that deals also with the rider point that there was nothing in the evidence to suggest that any part of the nature or circumstances or terms of employment of the respondent would have been incompatible with having sexual activity with

a friend when she was not required to carry out duties.  We say that there is no principle of law that can be discerned in the cases to suggest that sexual intercourse with a partner or friend was so far outside the ordinary activities expected to occur during an overnight interval in a motel room, that any injury from it should be expressly excluded from the ordinary application of the Hatzimanolis test. 

Neither is there any rational basis, we submit, in common human experience for excluding ordinary sexual activity not involving misconduct from the range of activities to be realistically expected from employees during intervals where the employee is placed at the employee’s direction at private accommodation away from home.  In other words, sex is a fundamental universal incident of human life and the Hatzimanolis test at least recognises that implicitly. 

I am not saying that the Court explicitly set out to recognise that issue, but the test as it is currently phrased recognises that.  It recognises, indeed as the Solicitor‑General correctly said that it is not really any of the employer’s business what a person does on their own time in private provided that it does not interfere with turning up for work the next day and doing the duties expected of you in this case and it does not involve misconduct. So we say on that basis the Full Court correctly decided the matter, the appeal should be dismissed, your Honours.  Those are my submissions.

FRENCH CJ:   Thank you, Mr Grey.  Yes, Mr Solicitor.

MR GREY:   I am sorry, your Honours, there is one other thing.  Justice Gageler, you asked me a question about Bill Williams and I forgot to come back to you.

GAGELER J:   You may have covered it in your last two or three sentences of your submissions, but it is the reference in Bill Williams to Kavanagh, the particular passage in Kavanagh is 103 CLR ‑ ‑ ‑

MR GREY:   I picked up Bill Williams and ‑ ‑ ‑

GAGELER J:   I think you may have given an answer sufficient for my purposes.  Thank you.

MR GREY:   Thank you, your Honour.

FRENCH CJ:   Yes, Mr Solicitor.

MR GLEESON:   Your Honours, the key proposition of principle put by the respondent seems to have these elements to it.  The first is the Court is only looking at a subcategory of interval cases, those where we have an interval within a larger work episode, short or long.  Secondly, in the interval there are no duties to perform by definition.  Thirdly, if the employee is directed or required to be at a place that is a restriction on liberty.  Then fourthly, critically, that restriction upon liberty is sufficient to make the employer responsible for any injury that follows at the place, absent gross misconduct.  Correspondingly, fifthly, no inquiry is permitted in law as to what the employee was doing while at that place at the time of injury.  That seems to be the key proposition as a matter of principle.

In summary, our answers to that are, firstly, it cannot sit with the careful qualifications of Chief Justice Barwick in Danvers at 535 and Justice Dixon in Speechley at 134. Secondly, the Court in Hatzimanolis did not state it intended such a radical expansion of the law.  Thirdly, it wrongly expands and interferes with the nature of the employment relation such that a raft of things which the employee might choose to do at the place over which the employer has no control, interest or right to direct are outside the employment relation from the point of view of the employer’s power but within it from the viewpoint of liability for compensation.

Fourthly, it does create a major disparity with the position where the employee is at work.  Mr Grey correctly said in answer to your Honour Justice Gageler’s question that at work Bill Williams establishes that not everything that happens at the place is in the course of employment.  At work one might think the restriction upon liberty is equal or greater to what it is in the interval case.  One is under the direct supervision, oversight and control of the employer, yet that restriction of liberty does not lead to the consequence the employer is responsible for all injuries absent gross misconduct so it creates a rather major disparity.

Next, and second last on this point, Mr Grey has identified no prior case either in Hatzimanolis or otherwise which adopted a principle of such breadth, and finally, a careful reading of Hatzimanolis as we have seen shows that it can be read sensibly without introducing such a restriction.

Your Honours, apart from that response to the key point made by Mr Grey, could I just mention on the particular cases he placed significant weight upon.  Favelle Mort 133 CLR 580 is obviously different for a number of reasons the Court has already teased out. Firstly, it is apparent from 582 that there was a finding at trial – this is finding 4 – that the disease was contracted “in the course of his employment”, which followed finding 3, “his employment . . . while absent from Sydney was continuous”. This is a case of its own kind where the employee was continuously employed 24 hours a day. Twenty-four hours a day the employee was there to answer a call, and therefore there were duties 24 hours a day.

There was a finding that he contracted the disease in the course of employment, which the appeal was not about, and it was a case where although one did not know when he contracted the disease, he contracted it at some time in a period when he was at call and therefore on work.  There were no findings that he was engaged in some other personal activity which in any way set the context for the injury, and as the Court’s questions have pointed out, the actual issue in discussion in the case concerned the second limb of the definition of “injury” set out at the top of page 583, namely whether the employment was a contributing factor to the injury.

Even in that rather different context, the discussion of Chief Justice Barwick at 584, is consistent, I would submit, with our principles.  Secondly, the case your Honours were referred to, but were not given McCurry.  I need only say that it is a case where the Court conducted an inquiry into facts beyond the mere presence of place, the facts included whether the employer knew of the sexual relationship occurring between the injured worker and the co‑worker, and there were findings of positive knowledge of that conduct occurring and those were matters properly taken into account, it was not a mere place case.

Thirdly, you were referred to WorkCover v Walling in the NSW Court of Appeal 16 NSWCCR 527, paragraph 17 and 18 display a significant difficulty which the Court of Appeal had with the artificially narrow view of the place test which was being urged on the Court in reliance upon Hatzimanolis, and we would submit that those difficulties were correctly expressed, and they show that the place test cannot be artificially confined as it was.

Fourth, I must just observe on the facts on Oliver that Mr Grey was incorrect.  The cricket game was not incidental.  The finding at page 355 was that it was as the worker went forward to pick up the ball in the cricket game he tripped over the earthen mount.  The question of the role of gross misconduct, your Honour Justice Bell asked me about that this morning and I attempted an answer.  Mr Grey has covered the area this afternoon.  It seems to come in at two levels.  If we are only reading the statute, clearly it is expressed as an exception to the liability of compensation and it is an exceptional exclusion which negates both limbs, both the temporal and the causal limb. 

Mr Grey is certainly correct that at an earlier level, within Hatzimanolis, it is brought into the equation in how one is to express what is the course of employment.  It would still be the way we would analyse it that there are a variety of things the worker may choose to do which, by reason of their personal choice, character, take one outside the course of employment short of matters which are gross misconduct.  While we do not see that in words of one syllable in the critical passage in Hatzimanolis, reading the context of the broader cases, that principle remains as an important one.

Finally, your Honours, I was attempting to answer Justice Gageler’s question about Kavanagh when I found that Mr Howe had not only stolen my copy of it but stole it beyond my reach.  But I did want to try and answer that question.  I have Bill Williams at the passage your Honour went to, which I think was 158, the reference back to Justice Fullagar in Kavanagh at page 559, I wonder if your Honour would be so good as to ask me the question and I would try and answer it.

GAGELER J:   You want the question that was to be directed to your opponent?

MR GLEESON:   Well, I have no right to ask for it, your Honour, it is only ‑ ‑ ‑

GAGELER J: Well, I will ask it anyway. It is at 103 CLR 559, which is the reference given. The reference appears to be to the statement of Justice Fullagar in the last sentence in the first full paragraph on that page, so the sentence is:

Whether the injury is sustained at the place of employment or elsewhere, it is not sustained “in the course of employment” unless it is sustained while the work is engaged in the work which he is employed to do or in something incidental to that work.

It was the correctness of that statement and its consistency with Hatzimanolis that I was interested in.

MR GLEESON:   Yes, thank you, your Honour.  Our submission would be that statement is correct and remains correct.  One does not apply a different test if one is suffering the injury at the place of work or at a different place and in each case, although this language is now regarded in Hatzimanolis as old fashioned, to ask, am I doing the work I am employed to do or something incidental to it, it remains an appropriate framework.

Really, the effect of Mr Grey’s submission is that within this framework in an interval case, by definition, you will not be doing something you are employed to do because there are no duties, and by definition, merely being at the place will always legally satisfy the incidental limb without any further inquiry being permitted, and that would turn on its head what Justice Fullagar said.

BELL J:   Justice Fullagar’s remarks there are in the context of explaining the reason for introducing the distinction between “out of” and “in the

course of”, and it just might be noted that is then picked up in Oliver by Chief Justice Dixon at 359.

MR GLEESON:   Yes, if your Honour pleases.  Those are our submissions, your Honours.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will reserve its decision.  The Court adjourns to 10.15 am tomorrow.

AT 3.41 PM THE MATTER WAS ADJOURNED