Hatzimanolis v Ani Corporation Limited

[1992] HCATrans 66

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl04 of 1991

B e t w e e n -

FRANK MICHAEL HATZIMANOLIS

Appellant

and

ANI CORPORATION LIMITED

Respondent

MASON CJ
DEANE J
DAWSON J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 MARCH 1992, AT 11.46 AM

Hatzimanolis(2) 1 11/3/92

Copyright in the High Court of Australia

MR W.H. NICHOLAS, QC: If Your Honours please, in this

matter I appear with my learned friend,

MR M.J. GORRICK, for the appellant. (instructed by

T.D. Kelly & Co)

MR J. POULOS, QC: If Your Honours please, I appear with my

learned friend, MR C.R.R. HOEBEN, for the

respondent. (instructed by Connery & Partners)

MASON CJ:	Mr Nicholas?
MR NICHOLAS:	Your Honours, we have had our submissions, our

outline, sent to the Court a few days ago, and may

we take it that Your Honours have received them,

and if I can take Your. Honours through them.

Your Honours, we set out the history of the matter in the opening paragraphs and, I think, I can get

to the real situation, Your Honours, by taking you

to page 3 in paragraph 8, in which we have set out
the findings of His Honour Judge Moran in the

Workers Compensation Commission, as to the

circumstances in which the worker became injured.

Your Honours, I do not wish to read it line by

line unless Your Honours would find it helpful for

me to do so, but if it is necessary for me - - -

MASON CJ:	No, we can read.
MR NICHOLAS:	Your Honours, I do not want to take up any

more time than is necessary, but Your Honours will

appreciate that the worker was at Mt Newman as a member of a gang of electricians pursuant to his

employment with the respondent. They came from New

South Wales as a team to be in this place for some

12 weeks and their expectation was that they would

be working Monday through to Saturday, fairly

lengthy hours, and to be available for Sunday work

if required.

TOOHEY J: 

Mr Nicholas, when did the appellant start work?

MR NICHOLAS: 

On what day, Your Honour?

TOOHEY J: Yes. 

MR NICHOLAS: 

I think they arrived in Mt Newman on 1 August,

so that the accident with which the case is
concerned took place on the third Sunday after they

had been there.  The first Sunday, I think, was

7 August.  On that day, although they were

available for work if required, they were not
required and Mr Pope, the supervisor, organized a
sightseeing trip for them around Mt Newman. They

used the company's vehicles for that purpose and

Hatzimanolis(2) 2 11/3/92

food was provided through Mr Pope's offices from

the canteen.

The second Sunday, Your Honours, they went to,

I think, the Mt Newman show, and on the third

Sunday, which is the Sunday with which we are

concerned, 21 August, some days before Mr Pope told

them that they would not be required for work on

that day. The evidence was that they were

available to work if required, and so he suggested

to them that they should undertake together this

trip to Wittenoom, some 400 kilometres away, and so

they did.

And the situation was that, as before, the

food, the vehicles, were arranged by Mr Pope, seven

of the eight of them, including Mr Pope, went on
the journey. It is certainly true to say, of
course, that it was free to accept or reject the

offer; there were no sanctions if one did not go

and, indeed, one of the men chose not to go.	They
went to Wittenoom, they had their picnic, they
looked at the gorges and it was on the return

journey that the accident happened and the

appellant was the driver of one of the motor
vehicles, he was overtaken by the other vehicle,
there was a great deal of dust on this unsealed
road. In circumstances which are not clear, but
apparently he lost his vision, the motor vehicle
overturned and he suffered his injury.

Your Honours, we have summarized the findings of the trial judge in paragraph 8 and I understand

that really there is no contention about that. We

have indicated further matters which we submit are

of relevance and they are at paragraph 10,

Your Honours. They obviously were matters which

the trial judge took into account, but he did not

expressly refer to them in his judgment. If I

could take Your Honours to them. Paragraph l0(a):

the supervisor, Mr Pope, received the application

forms from the appellant and his fellow members of

the work force in respect of the positions being
offered by the respondent at Mt Newman and he was
the one who offered employment to the appellant on

behalf of the respondent. This, I should have

said, was back in Wollongong, before they set out

on their - - -

McHUGH J:	What is the relevance of these statements?
MR NICHOLAS:	Your Honour, really only to indicate the role

of Mr Pope; nothing more nor less than that.

McHUGH J:	Does it go to his authority?
MR NICHOLAS:	I beg Your Honours pardon.

Hatzimanolis(2) 3 11/3/92

McHUGH J: Is it a question of the scope of his authority.

MR NICHOLAS: Yes, it does, and what in fact he was doing.

He was the supervisor, he recruited the men, he

explained to them what was expected of them.
Following his explanations to them, I think, in

July back in Wollongong, they agreed to go and he

it was that led them to Mt Newman, set them up

there and was the employer's representative

supervisor on the site at all times. That is the

only significance of it, Your Honour.

McHUGH J:  What is the principle we apply to these facts to

determine whether this was in the course of the

employment?

MR NICHOLAS:  Your Honour, that this accident happened

whilst the employee was engaged in an activity

which was a concomitant of or incidental to his

employment.

McHUGH J: That states a conclusion; it does not tell any

court how it arrives at that conclusion. It records the result of a finding that must be

reached on some other grounds.

MR NICHOLAS: Well, Your Honour, to get to the result one

has to approach the question by ascertaining the

scope of the expression in the statute and the expression is, injury arising in the course of

employment. Now, Your Honour, I suppose the

ultimate answer to the question will depend upon
the approach to the construction of that

expression.

McHUGH J:  Mr Justice Dixon attempted it once when he spoke

about it doing something that was reasonably·

required, authorized or expected to do, but I am

not sure that gets you all the way in a case like

this, does it?

MR NICHOLAS:  Your Honour, we say, with respect, that the

correct approach can be seen in The Commonwealth v

Oliver, again a judgment of Mr Justice Dixon's, and observations of Mr Justice Menzies in that case.

We wanted to take the Court to it. We refer to the

passages in paragraph 15, which is on page 7 of our

notes. If I can go to that, there are really,

Your Honours, four cases that we would take you to,

two by way of indication of the principle - that is

The Commonwealth v Oliver and Mr Justice Deane's

judgment in Commonwealth v Lyon - and the other two

cases that we refer to in paragraph 15 we use by

way of example.

Hatzimanolis(2) 4 11/3/92

May we take the Court to The Commonwealth v

Oliver, 107 CLR 353.	Your Honours, as appears from
the headnote:

A Commonwealth employee was injured when

playing cricket during the luncheon break at

the premises where he was employed. There was

evidence that employees were not expected to

leave the premises for lunch and that the

playing of games was a recognized practice.

Your Honour the Chief Justice, against

consideration of the principles, we suggest, for

relevant purposes, at page 355 - if I can take the

Court to a passage which is about two-thirds of the

way down page 355, it begins with the sentence:

In the course of the progressive enlargement

of the conditions which, under the Workers'

Compensation legislation, have provided the

limits upon the description of injury by

accident that is compensable, probably the

most striking, as well as perhaps the

earliest, was the substitution of the

requirement that the accident should arise

either out of the employment or in the course
of the employment for the long standing and
notorious expression "arising out of and in

the course of the employment". This

substitution was made in Western Australia

much earlier than in New South Wales or

Victoria. The existence of the double

condition had necessarily made it natural to

look for a connexion between, on the one side,

not only the nature of the employment but also
the fulfilment of its duties and the pursuit
of its incidents, and on the other side, the
occurrence of the accident or the sustaining

of the injury. This habit of thought was not

completely broken by the change of "and" to

"or": for the instinctive feeling persisted

that the accident or injury must be in some

measure occasioned by or related to the

employment.

Then, if I can take Your Honours about

10 lines further down that page to the reference

from Lord Loreburn's judgment:

Lord Loreburn some years earlier had said of

the matter: "Everything, of course, must

depend upon the nature of what he has to do,

but allowance should be made for the ordinary

habits of human nature and the ordinary way in

which those employed in such an occupation may

be expected to act. A man may be within the

course of his employment not merely while he

Hatzimanolis(2) 11/3/92

is actually doing the work set before him, but

also while he is where he would not be but for

his employment, and is doing what a man so

employed might do without impropriety." The

field covered by the general conception of

what is incidental, ancillary or consequential

to work but yet sufficiently within the sphere

of the man's employment to make it proper to

say that when he is within it he is in the

course of employment has doubtless widened its

practical boundaries with the enlarged

conception of what belongs to the factory or

other organized industrial unit in the

amenities and welfare of the members of the

staff or labour force.

And then, Your Honours, having taken you to that,

could I bring the Court over to page 358 where

His Honour was dealing with his earlier decision, the decision of this Court in Whittingham, the

cricketer case decided about 30 years prior to

that, in which the case went against the person

playing cricket in his lunch hour. His Honour, at

the commencement of the first paragraph on

page 358, says this:

I shall not analyse what Rich J and

Starke J said as to why the injury was not sustained by Whittingham in the course of his

employment, one reason being that I think that

it must be read in the light of their Honours'

judgments in Davidson v Mould. For myself, I

think that what I said conformed with the

conceptions prevailing at the time of what

sufficiently belonged to the employment to be

"described by the words 'belonging to',

'ancillary to', 'incidental to', 'adjuncts of'

or 'arising out of' his employment". But as

to the passage following I should nowadays
perhaps regard Whittingham's presence in the

yard near the cricket players as more

naturally within the scope of the employment

or perhaps I should say as more regularly and

commonly accepted as a concomitant or incident

of his employment.

And, Your Honours, if we could read from

Mr Justice - - -

McHUGH J:  What is the effect of this, and how do you use

that judgment in a case like the present?

MR NICHOLAS:	Your Honour, what we contend is that the provision of the facility or the opportunity to go
on this trip, the participation in it by the
appellant and his colleagues should properly be

Hatzimanolis(2) 6 11/3/92

regarded as a concomitant of or incidental to the

employment.

McHUGH J: Supposing they were going to a two-up game that

was being played 20 miles away; would that be in

the course of the employment?

MR NICHOLAS: Well, Your Honour, I suppose it is very easy

to respond to that by saying "it depends". The

best answer that I can give to where you draw the

line is by taking the Court to what

Mr Justice Dixon had to say in Humphrey Earl Pty

Limited v Speechley, and he deals with that and,

Your Honour, it might be more helpful if I take you

directly to what he says as to how to answer that

question.

McHUGH J:  No, you carry on with Oliver.

MR NICHOLAS: Well, Your Honour, I propose to come back to

that because obviously I have to deal with the

query as to where one does draw the line and

Mr Justice Dixon does, but if I could complete the

reference to Oliver and come back to that,

Your Honour. Mr Justice Menzies, at page 361, at

the foot of the page, the paragraph at the end of

the page says this:

It is only by reason of the way in which

the concept of the course of a worker's

employment has been gradually widened by

decision after decision that injuries

happening at lunch-time when a worker is off

duty and is doing something that upon its face

is remote from his work have been regarded as

falling within that concept. Perhaps no case

shows the development of the extension better

than Davidson v Mould where this Court upheld

a decision of the Full Court of New South

Wales that a worker who, at his employer's

premises during a lunch break, suffered injury	to his eye while removing the crown seal from	a bottle of coca-cola had been injured in the
course of his employment. In his dissenting
judgment Latham CJ said: "It has not yet been
finally established that whenever an injury is
received by a worker on the premises of his
employer at a time when he is entitled as an employee to be upon those premises, he is
entitled to recover compensation, whatever the nature and circumstances of the injury may be"
and in criticizing Knight's case - injury
while lunching in canteen by a dart thrown by
a fellow employee held to be in course of
employment - the learned Chief Justice said
that that case "ignores the fact that there
must be some relation other than a merely

Hatzimanolis(2) 11/3/92

temporal relation between an injury and an
employment to justify a finding that the
injury arose in the-course of the employment".

It seems to me that the second observation is inconsistent with the later decision in

Kavanagh v The Commonwealth where it was held

that personal injury by accident which occurs to an employee while performing his duties or whilst doing something incidental thereto

arises in the course of his employment and

although the judgment of the majority in

Davidson v Mould does not go to the extent of

establishing the proposition which the learned

Chief Justice said had not been finally
established, it does show that where an

employee is upon his employer's premises with

his employer's sanction during a break in his

employment and is injured, what seems to be a

very slight connexion between what he was

doing at the time of his injury and his
employment is sufficient to bring the injury

within the course of his employment.

Your Honour, I think I can pick it up at the foot of the page. His Honour continues to quote from

Chief Justice Jordan's judgment:

"I think that if a worker is using part of his

employer's premises for his own purposes

during a rest period, it is immaterial, in

this connexion, whether he is doing so by the

mere permission of his employer or in the
exercise of a legal right conferred by his

contract of employment" and later his Honour

took the instance of a worker leaving his

employer's premises altogether as prima facie

interrupting the course of his employment. In

any event it seems to me that it can hardly

matter whether the worker remains in his

workroom or not provided that he is where he

is by permission of his employer.

Your Honour, the reference to the test of

His Honour Justice Dixon in Humphrey, Earl &

Speechley, His Honour cites, and then goes on to

say:

If this is to be said about taking lunch, why

should it not also be said about taking a

walk, dozing in the sun, or playing a game of

table tennis or cricket during a break with is

provided as a respite from work and not merely

to enable the worker to have something to eat

and drink?

Moreover, if it be true that the

respondent here would have been dong something

Hatzimanolis(2) 11/3/92

incidental to his employment while he was
eating his lunch, presumably the same would be

true of his getting his lunch at the canteen

and carrying it to the place he had chosen to

eat it and so it may be asked, in this

particular case, when, in the half-hour break

when the respondent was expected to remain

upon the aerodrome, did he cease to do

something incidental to his employment and

start to do something that was merely for his

own amusement? If the answer to be offered

is, when he began to play cricket, the retort

might be made:  "But not if he happened to

have been eating an apple at the same time".

The answer to these refinements is, I think,

that eating lunch is not something that has a

particular intrinsic connexion with work that

other lunch-time activities lack but is merely

one of the things incidental to the employment

for which a lunch break is intended to

provide. The question is always whether what

was being done at the critical time was

incidental to the employment. The

Commonwealth contends, however, that the

answer to this question in the particular case

is authoritatively provided by the decision of

this Court in Whitingham v

Commissioner ..... which establishes that

strolling upon an employer's premises where a

cricket match is being played at lunch-time is

not incidental to a worker's employment. That

case did decide that in the circumstances

there and in the industrial setting of that
time a worker who was strolling during the

luncheon interval on a recreation ground

attached to the workshops at which he was

employed when he was struck in the eye with a

cricket ball, hit probably by one of his

fellow workers who were playing cricket there,

did not suffer an injury in the course of his

employment.

Your Honours, could I bring you down to about

half-way down the page where Your Honours will see

the figure (3) at the end of the reference, and

pick it up there. The sentence begins:

For present purposes, however, when our task

is to find the principle of law upon which the earlier case was decided, the most significant

part of his Honour's judgment is where he

said:  "There can no longer be any doubt that

the accident must happen while the employee is

doing something which is part of or is

incidental to his service ... As the test is

not, and could not be, whether the employee

was obliged to act as he was doing when the

Hatzimanolis(2) 9 11/3/92

accident occurred, the inclusion of things

arising out of the actual performance of his

duty was, no doubt, inevitable, but, as a

result, the sufficiency of the connexion

between the employment and the thing done by

the employee cannot but remain a matter of

degree, in which time, place and circumstance,

as well as practice, must be considered

together with the conditions of the

employment". This passage indicates clearly

that the decision upon the facts of one case

cannot be applied to another case in which

time, place, circumstance and practice may be

different.

It seems to me that we must determine the

question before us upon the evidence looked
at, not against the background of a particular
decision given thirty years ago upon its own
facts, but against the background of what

seems to me to be a widely-accepted and

sensible present-day practice of employers

encouraging workers to spend intervals between

working hours, which must often be spent upon

the employers' premises, in recreational

activities. Against this background the

evidence here which shows that the

Commonwealth adopted the practice referred to,
does seem to me to point to the conclusion

that in playing cricket as he did, the

respondent was engaged upon an activity

incidental to his employment.

I do not think I am in any way departing

from authority when I say that for the

foregoing reasons I agree with the decision of

the County Court judge that the respondent's

injury happened in the course of his

employment with the Commonwealth.

Your Honour Mr Justice McHugh, if I can come

back to Mr Justice Dixon's guidance as to how one

endeavours to draw the line, by going to Humphry

Earl v Speechley, 84 CLR 126 - - -

TOOHEY J:  Why do you have to draw the line, Mr Nicholas?

It is often not possible to draw a line. It may be

possible to say on which side of the line something

will fall, wherever it is drawn, but a question

like this is not always answered by attempting to

draw the line.

MR NICHOLAS:  I respectfully agree with Your Honour, but I

suppose it would not be right to say that

everything that an employee does whilst in

employment may give rise to an injury which would

fall within the definition. What I am endeavouring

Hatzimanolis(2) 10 11/3/92

to say, Your Honour, is that it cannot be right to
say that, for example, if the employee could be

seen to have been engaged in an activity truly a

frolic of his own, although nevertheless during a

rest period, then that would necessarily be

covered.

I suppose it is only in that context, with

respect, that one can talk about considering

drawing the line, depending upon the particular

facts and circumstances of the case. I do not

think any general statement can be made,

Your Honour.

TOOHEY J:	I am not suggesting that a line should not be drawn if it is possible. All I am saying is that
an inability to draw the line is not necessarily
the end of the matter. There are cases which may
clearly fall on one side of the line, wherever it is drawn, and cases that clearly fall on the other
side.
MR NICHOLAS:	With respect, Your Honour, that is the - I was

going to say ''difficulty", but really that is why

it is unhelpful in cases of this kind to refer back

to other cases which deal with another set of

facts. Your Honour, just to complete the reference

that I wish to give the Court, it is at page 134,
about 10 lines down from the top of the page.
Your Honours see the reference to Armstrong,

Whitworth v Redford, and about three lines down from there, the sentence beginning:

The point in such a case as this is not

whether it is reasonable to eat lunch or

reasonable to want fish for lunch. The

question is whether the 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

far deviates from what is reasonably incident	lunch incidental to his employment. If he so
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. There is a great difference between, on the one hand, the worker's taking advantage of an allowable
interval for lunch in order to make it the
occasion of an excursion for his own purposes
and on the other hand his acting in a way
which is reasonably calculated to fulfil the purposes of his employment and at the same
time provide for his own reasonable wants.
Such questions must involve matters of degree,

Hatzimanolis(2) 11 11/3/92

but it does not follow that their decision is

always a question of fact -

I do not think I need to trouble Your Honours about

the rest of that.

MASON CJ:	I must say for my part I do not see how these cases help you very much, Mr Nicholas, because they
seem to express a rather limited conception of the
scope of the employment.
MR NICHOLAS:	Yes, Your Honour, they do and that expression

is the very matter that His Honour Mr Justice Deane

dealt with in Commonwealth v Lyon, (1979)

22 ALR 300, if I can take the Court to that.	The
facts appear from the headnote, which is at
page 300:

Lyon, a clerk in the Bureau of Customs,

suffered a fracture of his thumb whilst

playing football for the customs team in the

Sydney Domain. The football was encouraged by

the employer, which provided amenities for the

team to change at work and transport to the

Domain. The Collector of Customs attended the

match, the results of which were also reported

in the official Bureau publication. The

Commonwealth Employees Compensation Tribunal found as a fact that in playing football Lyon was doing something he was reasonably

authorized to do in order to carry out his
duties.

Now, Your Honours, His Honour sets out the facts on page 301 and in greater detail at 302 and 303, and

for the moment I do not think I need trouble the

Court about that detail. May I bring you to

page 303, the paragraph begins at line 12:

The question formulated by Justice Dixon

in Humphrey Earl Limited v Speechley, which

the tribunal applied as the appropriate test

has been applied by courts on innumerable
occasions since its formulation and has been

recognized and accepted in a number of

subsequent cases in the High Court of

Australia -

and references are given and Your Honours, I should

have taken you back to it, because on page 301 the

test to which His Honour was there referring is set

out; that is at line 35, and the reference is

given, after the case citation:

namely, whether the respondent "was doing

something which he was reasonably required,

Hatzimanolis(2) 12 11/3/92

expected or authorized to do in order to carry

out his duties".

And then going back to page 303 at line 19:

That test is plainly a most useful aid as a

criterion of inclusion in the concept of

"course of employment" (ie. if the test is

satisfied, the respondent was doing something

in the course of his employment). If,

however, the test is to be used as a criterion

of exclusion (ie if the test is not satisfied the respondent was not doing something in the
course of his employment) it is, in my

respectful view, necessary to place a gloss on

the words "in order to carry out his duties"

which conclude the question formulated by

Justice Dixon so that that prima facie

intractability may be tempered to accord with

the current views of what comes within the scope of employment which are more liberal than those prevalent at the time Justice Dixon

formulated it.

And then the reference is given to Oliver.

Any such gloss tends to reintroduce general concepts such as what should be accepted as

reasonably incidental to employment (see, for

example, the dissenting judgment of Roper, CJ

in Muldoon v Pickering ..... which was mentioned

with approval by Chief Justice Dixon in

Commonwealth v Oliver. It was as a test of

inclusion that the tribunal applied the

formulation of Justice Dixon. Plainly, it was

entitled so to apply it. That test should

however, even when used as a criterion of

inclusion, be seen as an aid in the

application of the words used in section 27 of

the Act and not as an exclusive substitute either for the words of the section or the

assistance which is to be obtained as to their

scope and operation from other authorities.

The essential question remains whether the relevant injury arose in the course of the

employment.

His Honour went on:

Injury in the course of employment means an injury sustained while the worker is

engaged in the work which he is employed to do

or in something which is a concomitant of, or

reasonably incidental to, his employment to do

that work.

Kavanagh and Oliver are referred to.

Hatzimanolis(2) 13 11/3/92

The course of employment is a temporal concept

and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he

sustains. The scope of what is within it

depends upon "the sufficiency of the

connection between the employment and the

thing done by the employee" which "cannot but

remain a matter of degree, in which time,

place and circumstances, as well as practice,

must be considered together with the

conditions of the employment".

With respect, Your Honour Mr Justice Deane then set

out the passages in Commonwealth v Oliver to which

I think I have already taken the Court, and

continued over on to the next page and Your Honour
concluded, at page 305, line 4:

It was plainly an important factor in the decision in Oliver's case that the injury

which the employee sustained was sustained on

the employer's premises. In the present case,
the respondent's injury was sustained on a

playing field over which his employer had no

control whatsoever. Were it not for that

distinction and the fact that the "lunch time

period" in the present matter was considerably

longer than the "lunch time period" in

Oliver's case the respondent's case in the

present matter would, in my view, be a

considerably stronger one than was the

employee's case in the Commonwealth v Oliver.

In Oliver's case the game was "countenanced if

not encouraged, by" the employer. In the

present case the game was enthusiastically

encouraged by the employer. In Oliver's case

the game took place in breach, as to the

precise location, of an unenforced ban by the

employer. In the present case, the employer

actually transported the respondent to the

place where the game was played. The

particular game in Oliver's case enjoyed no

particular recognition from the employer.	The
Collector of Customs extended his
encouragement to the players in the game in

the present case and the official publication
of the Bureau featured the success in it of

the "Customs Greens".

Your Honours, I do not think I need take you to the

next passage.

MASON CJ: Well, you should not overlook the last sentence

in the next paragraph, should you? That seems to

me to be critical to your case.

Hatzimanolis(2)	14	11/3/92
MR NICHOLAS:	Thank you, Your Honour.	I will read the

paragraph:

It must be recognized that the control

which an employer enjoys over his premises is

commonly a critical factor in determining that

an employee is in the course of his

employment, notwithstanding the fact that he

is off duty in an interval between working

hours. It may well be that, in most cases,

the fact that a worker has left his employer's

premises altogether will constitute a prima

facie interruption of the course of his

employment. It cannot, however, be said as a

matter of law that an employee's course of

employment is, of necessity, broken whenever

he leaves his employer's premises during an

interval between work periods. In the present

case, the significance of the fact that the

respondent left the employer's premises was,

to no small extent, negatived by the fact that
the employer made premises available in which

the employee could change into his football

gear and then transferred him, in a

departmental bus, to the place where the game

was played.

Thank you, Your Honour, for reminding me of that.

DEANE J:  Mr Nicholas, in a case such as this, why is it

that you do not look more to "arising out of" than

"in the course of"? Or should you not try and

separate the two?

MR NICHOLAS: Firstly I should say this, Your Honour: the

case was never run at any level on an "arising out

of" basis.

McHUGH J: That is just a test to be applied, and this is a

rehearing on the facts, is it not?

MR NICHOLAS: That is certainly so, Your Honour.

DEANE J: But that would be because, no doubt,

Chief Justice Dixon having recognized that they had

become alternatives, seems to direct all his

attention to "the course of", except he includes

among his examples in Oliver the "or arising out

of" as if it was an alternative. But they must

cover a great deal of common ground and when you

come to a case such as this, may not the "or

arising out of" extend more in the direction than

"in the course of"?

MR NICHOLAS:  Your Honour, the authorities seem to - I

suppose it is clear that on many occasions there

can be a real overlap.

Hatzimanolis(2) 15 11/3/92

McHUGH J: In most ordinary cases, there are. "Arising out

of" means it has got to be caused by the

employment.

MR NICHOLAS: Exactly, Your Honour.

McHUGH J: There has got to be a causal connection.

MR NICHOLAS:  Yes, and the other limb "in the course of" is

the temporal aspect of it. The courts seem to

approach it that there may be many occasions where

one cannot establish that the accident was caused

by the employment.

DAWSON J: It seems the questions are more or less the same.

If this man had been driving the vehicle carrying

something during ordinary working hours and had the

accident, there would be no question that his

injury arose out of his employment, would there?

He took something in the vehicle which he was

instructed to take from place A to place Band in

the course of taking it, he was injured.

MR NICHOLAS:	I would agree, with great respect, Your
Honour.

DAWSON J: Then it becomes a question, "Well, he wasn't

doing it within normal working hours, but was the

recreation which was provided by the employer an

incident of his employment?" In that situation,
the injury would arise out of and be in the course

of employment.

MR NICHOLAS:  Yes, Your Honour, but - I suppose why I am

hesitant, Your Honour, is that over the past, the

body of thinking seems to have developed that one

ought to look at the two limbs. It is approached

as having two limbs. It does not eliminate, of

course, overlap, that the particular injury might

have had a -

McHUGH J:	In the old days you had to prove both.
MR NICHOLAS:	You did indeed, Your Honour, and that was

because the word "and" was there.

McHUGH J: Plenty of workers were covered, notwithstanding

that there was a cumulative test, but the fact -

when you broke it up, it just made it a little

easier.

MR NICHOLAS:  Your Honour, that is so. What

Mr Justice Dixon, in Oliver, was doing, in the

passage that I read a moment ago, was to draw

attention to the effect of substituting "or" for

"and", and then went on to observe that, in the

days when it was "arising out of and in the course

Hatzimanolis(2) 16 11/3/92

of", you had to get over two elements, and he said

that in cases following the amendment, courts were
tending to be approaching it as though one had to

look for a causal connection in order to get up on

the second limb and, Your Honour, he does seem to - perhaps he is not eliminating the overlap, but what

he does make very plain is that one does not have

to establish a causal connection in order to

succeed.

TOOHEY J: Well, once the accident occurs out of hours or

off premises or in that sort of situation it is
often thought, and I do not say lightly, but it is

often thought that is easier to bring it within the

course of employment - - -

MR NICHOLAS:	I think Your Honour is right, with respect.
TOOHEY J:	- - - rather than arising out of the employment

because there is no work being performed at that

time. Now that may be to take an unduly narrow

view of "arising out of", but I think that is how

some of the cases can be explained.

MR NICHOLAS:  I think that is a very practical

DAWSON J: That is not this case, because if this excursion

was planned by the employer to cater for the needs

of men who are in a remote place and find time on
their hands and the carrying out of his plan
required vehicles to take them to and from the
place of recreation, then undoubtedly the vehicles
required driving and what this man did arose out of
his employment - provided you say that was in the

course of his employment - arose out of employment

as well.

MR NICHOLAS:  Yes, and I accept that, with respect.

DAWSON J: This is not one of those cases where he was just

eating an apple or some chance occurrence happens

which is - outside the normal hours.

TOOHEY J: But that is because you give employment a wider

connotation here, do you not? You take the fact

that you have got a gang of men employed in a

fairly remote area. Now, what employment means for

them, having regard to the fact that they are

working six days a week and there is nowhere else

they can go on the seventh day except by using the

employer's vehicle, it may be an entirely different

thing to the person who is working in a suburb and

decides to do something at lunchtime.

MR NICHOLAS:  Yes. Your Honours, we would embrace an

approach such as Your Honour Mr Justice Dawson was

suggesting. Perhaps it is accommodated by the

Hatzimanolis(2) 17 11/3/92

approach that we would respectfully urge upon this

Court to be looking at the construction of this

legislation against the background of the demands

and expectations of today, and if that is the case

then the "arising out of" limb is easily fulfilled

in this case, but certainly the cases have made

very plain, or have taken considerable care in

recognizing and maintaining a distinction between

the two limbs and perhaps taking a much more narrow

approach in relation to the first limb to make good

the cause.

MASON CJ: But it is not so much a matter of the

expectations of today, is it? It is a matter of

the expectations of those parties to the employment

relationship arising out of employment in this

location having regard to all the characteristics

of employment in this remote location.

MR NICHOLAS:	Yes, Your Honour.
MR NICHOLAS:	Yes, Your Honour.  Your Honours, we could

simply sum up, with respect, by really stating

differently the sort of matters that Your Honour

has been putting back to me as to the consequences

of this factual situation: that here the situation

was where the men were at Mt Newman to work; that

the free Sundays that they had may properly be seen

as intervals between the periods of actual work
and, in this set of circumstances, really, are no

different in character from a lunch or tea break in

the usual working situation. That was recognized,

we would say, and accepted by the employer in

providing vehicles and food for reasonable use

during those intervals and, however, there are a

number of ways of looking at what might have

motivated the employer to provide this opportunity

but all of them, we would say, demonstrate a
recognition by the employer that it was perfectly

appropriate and a reasonable incident of attending

to the men in the circumstances in which they were.

McHUGH J:	You do not rely on Kirkland's case at all?
MR NICHOLAS:	Your Honour, we get assistance from Kirkland,

but only - and this is not to diminish it,

Your Honour, but only by way of example. Your

Honour, can I take you to it, to provide the

example.	It is an unreported decision of the New
South Wales Court of Appeal, October 1980.	May we
hand up to you copies.

While they are being put before Your Honours,

may we simply remind you of the two other

references that we have set out in paragraph 15 of

our notes.

Hatzimanolis(2) 18 11/3/92

The Victorian Full Court in Park v Peach is

the situation where the employed taxi driver

stopped, got out, bought a newspaper and was struck

and injured, and the court there approached the

matter very much, with respect to them, as

Your Honour Mr Justice Deane did in Commonwealth v

Lyon, and so too did Mr Justice Connor in the

Australian Capital Territory Supreme Court in

Wolmar v Travelodge, which is a good example of a

Christmas party type case where, in this case the

guest, an employee, was injured, and one can come

back to it if need be.

Your Honours, in Kirkland - the facts are set

out on pages 1 and 2 - it involved a crew member of

a Qantas flight arriving in Athens in the early

hours of the morning and going out to have a meal.

The sequence of events may be picked up on page 2

of the judgment, Your Honours, from (k):

(k) After his luggage arrived the Applicant

left his room intending to obtain a meal.

(1) There was a restaurant downstairs in the

hotel with a limited menu. The applicant

proceeded to a restaurant known as Fulya's

Restaurant and which was some 100 to 150 yards

distant from the hotel and where a more

substantial meal was obtainable than at the

hotel.

(m) The Applicant arrived at Fulya's

Restaurant at about 1.15 a.m. where he

consumed a meal and some liquid refreshment in

the nature of beer.

(n) Between 2.30 a.m. and 2.45 a.m. on the

11th September, 1977, the Applicant left his

table at Fulya's Restaurant for the purpose of

leaving the restaurant.

(o) As the Applicant was walking to the door,

the Applicant slipped on a wet floor in the

restaurant and his right elbow went through a

restaurant window thereby causing injury to

the same.

(p) The said injury was received during the

rest period in Athens in accordance with the

Industrial Award referred to herein and in

accordance with the Applicant's roster pattern

prepared prior to the Applicant's departure

from Sydney.

Now, Mr Justice Hutley, page 3, half-way down

the page, deals with the matter:

Hatzimanolis(2) 19 11/3/92

The first matter for consideration is

whether what was held by the Commission,

namely, that what the applicant was doing at

the time of his injury was reasonably
incidental to his employment, was a finding of
fact or a finding of law. In my opinion, it
was a finding of fact so that the only
question which really arises on the stated

case is whether or not there was any material

upon which a judge acting reasonably could

find that upon the facts which he had found in

paragraph 4 that having the meal which the

respondent had in the cafe at the hour he had

it was reasonably incidental to his

employment.

TOOHEY J: But that is not the situation here, is it? I

mean, some of these workers compensation cases are

cases which simply turn upon whether or not there

was evidence upon which the primary tribunal could

have reached the decision it did. This matter went
before the Court of Appeal by way of revue and

rehearing, so it is a question of whether the

Court of Appeal was wrong, is it not?

MR NICHOLAS:  Oh, certainly the way it was presented in this

case, Your Honour.	What I was seeking to do
was to -

TOOHEY J:  I was simply pointing out, Mr Nicholas, the

question is not whether or not there was material before the primary judge in the present case upon

which he could have reached his decision, but
whether you can persuade the Court that the

decision of the Court of Appeal was wrong.

MR NICHOLAS: Yes, but Your Honour, the utility of this case

is an example which is really not very far removed

from the one that we are dealing with here and

Mr Justice Hutley regarded:

the proposition as barely arguable.

And over on the next page, Your Honour sees in the

second paragraph, Mr McHugh:

submitted, this is a very special situation

and a tribunal of fact could properly find

that what took place during these rest periods
arose out of his employment or was in the

course of his employment, unless, as

Mr McHugh, QC conceded, what was done

constituted a pure frolic of his own. It

cannot be suggested, in my opinion, that

having a meal under the circumstances which he

did was a frolic of his own.

Hatzimanolis(2) 20 11/3/92

Your Honours, that perhaps, with respect, is

the sort of concept that one might think in trying

to reach a point where one draws the line.

Your Honours, we do not really want to take you to

anything further in that case. Your Honours, with

respect, those are our submissions.

MASON CJ:  Thank you, Mr Nicholas. Mr Poulos?

MR POULOS:  Your Honours, may I hand up outlines of the respondent's submissions.

MASON CJ: Yes, thank you.

MR POULOS:  Your Honours, there is a difference in the

emphasis that would be placed on factual matters by

the appellant and the respondent. I hesitate to

give a disquisition on the geography of the State

of Western Australia when Justices Toohey and

Dawson have already adverted to this location as

being a remote one.

MASON CJ:  I do not think Justice Dawson has any special

claim for expert knowledge of Western Australia.

MR POULOS: If I am mistaken, I apologize.

MASON CJ: If he has, I think the rest of us can assert an

equal claim to it.

MR POULOS: There are 400 kilometres between Mt Newman and

day in question took place would be

the Wittenoom Gorges on the evidence in this case. events of the

closer to a whole day, being the Sunday and which

was the rostered day off for these workers. The

differences in time and space are the first things

that are immediately apparent to the observer of

this unfortunate situation. Another factor - - -

TOOHEY J:	I am sorry, what do you mean by that, Mr Poulos?
MR POULOS: For example, if one looks at the cases, in many

of the myriad instances that have been referred to

in various of the authorities such as Oliver and

others, Danvers' case and the like, we are dealing

with cases where almost, with the exception of

Kirkland which I wish to refer to in a moment, the

events occurred within close distance from the

camp, in close proximity to the workplace, such as
in Oliver, in close connection with time with the

actual employment.

Rather than to descend into those myriad

cases, may I simply put this general proposition,
that over the space of 50 or 60 years, it is

possible to refer to a number of cases which have

Hatzimanolis(2) 21 11/3/92

the labels attached to them for the sake of convenience, such as the camping cases, the sporting cases, the Christmas party cases. To look

at those, one finds that in all of them, the
closeness of the connection of the facts in that
case with the place of the employment and the time

of the employment is - - -

TOOHEY J: That is only an accident of geography, is it not?

I mean, someone who lives in Sydney might think

that taking a trip for 400 kilometres in the course
of the day is a long trip. If you lived in the

north-west, you might think that that is almost an

everyday occurrence.

MR POULOS: This is a trip of 800 kilometres.

TOOHEY J: Yes, but are you suggesting that the length of

the trip and the time occupied in making it somehow
bears upon the question of whether the accident

occurred in the course of employment?

MR POULOS:  Yes, I am, because it is one of the factual

matters that has to be considered when one

considers the question of degree and the closeness,

or connection, between the activities and the

employment. The reason I am using those words is

that they are the words that were used by

Justice Stephen in Bill Williams v Williams

authority which is, after all, one of the more

recent decisions of this Court. It is a case that

postdates Oliver's case, and is one in which the

sufficiency of the connection is considered to be

of importance by the High Court.

TOOHEY J: Could I just interrupt you so that I understand

how the argument is moving. Are you saying,

Mr Poulos, that the distance travelled is somehow

crucial in this case? In other words, had this

accident occurred on the day on which it occurred

on a trip of a similar nature, but say to visit a

gorge that was 50 kilometres away, might have been

within the course of employment, but that having

regard to the length of time involved in this trip,

it could not have been?

MR POULOS:  No, I am not saying that. It would be my

submission that any trips that took a person so far

out of the town of Mt Newman would have to be

looked at for their purpose rather than for their

distance because that is what the authorities seem

to dictate.

If one looks at Oliver, who was playing

cricket in his lunch hour of some half an hour,

Oliver was not allowed to leave the premises.

That, in my respectful submission, is a

Hatzimanolis(2) 22 11/3/92

distinguishible case. If, however, to return to

the facts of this case, and this is conceded at all

levels by the employer, if Mr Hatzimanolis had

sustained an injury in camp whilst he was going to

the mess on the Sunday, or if he had sustained an

injury driving between Mt Newman township - a

distance of a few kilometres at the most - and the

camp in which he was staying outside it, it is

permissible to argue, as a question of degree, that

his activities on that occasion were within the

course of his employment.

TOOHEY J:	What is the touchstone that enables you to say that one is within the course of employment, but the other is without?
MR POULOS:	Because one looks at the sufficiency of the

connection between the employment and the thing
done by the employee, and the sightseeing

expedition that was undertaken as a cooperative venture by the employees of the company was not

such an activity that would be reasonably

considered to be connected to the employment.

TOOHEY J: Supposing he had suffered an injury as he got

into the Toyota in the precincts of the camp.

Would it have been in the course of his employment

then?

MR POULOS:  If he was going to go on a sightseeing trip, I

would argue not.

TOOHEY J:  So that then the touchstone on that basis is that

it was a sightseeing trip.

MR POULOS:  Yes.

TOOHEY J: Well, in that event, it does not really matter

whether they were going 50 kilometres or 400

kilometres, or whether they were going to Wittenoom Gorge or whether they were going to some creek that

is just around the corner.

MR POULOS: Yes. That is the submission I put.

TOOHEY J:  I understand that argument, and that is really

what you are putting to us?

MR POULOS: Yes. It is.

TOOHEY J: It was because it was a sightseeing trip.

MR POULOS:  Yes, and I will go straight to the point that I

wish to make about Mr Pope's activities.

Statements have been made that the employer

arranged the trip in question. Now, Mr Pope was a

working foreman for the employer at this point in

Hatzimanolis(2) 23 11/2/92

time and on his day off he asked persons in the

gang whether or not they would like to go with him

to Wittenoom. He did not direct it, he asked them
to make a decision whether or not they would like

to come with him.

Now, that is, with the best effort I can make,

the highest point to which the case comes and if I

could use an analogy to try and point up why I make

that submission. If people had worked together

for, say, 10 years in Sydney or Wollongong, where
these people came from, and were in the habit of

arranging every Sunday for a sightseeing trip, it

would not be possible to say that because they went
as a group of persons who knew one another from

work and one of them, during working hours, was a

superior who could give instructions and orders to

them, to say that that would be in the course of

the employment. And the reason I wanted to make

clear the submission about the distance concerned

here is that what Mr Pope really wanted was to go

and see Wittenoom Gorge and he wanted to be in the

company of other people because he had to drive 400

kilometres to do so.

When Mr Pope issued his invitations to his

friends - and there is evidence in this transcript
that they were friends and they had a drink after
work, and that they all stayed in the camp together
- he was not acting in the role of the supervisor

for the company. He was acting more as a social

organizer of a group of people who found themselves

in the camp at Mt Newman with nothing to do on a

Sunday. That is the complexion we would ask you to

place upon the activities of Mr Pope on that

occasion.

TOOHEY J: 

Is it implicit in that submission that Mr Pope

had authority to make the company's vehicles
available, one or two, depending on how many people
wanted to go?

MR POULOS:  Yes, that is so, but as Chief Justice Dixon

pointed out in Humphry Earl v Speechley, the fact

that Speechley was on a motor cycle provided by his

employer when he decided to go from Dee Why to

Brookvale did not bring him within the course of his employment, and I think that answers, to a

certain extent, the suggestion that what

Hatzimanolis was doing arose out of the course of

his employment because he was driving a company
vehicle. Speechley was, in fact, not only driving
a company vehicle at the time the accident
occurred, but he had a customer of Humphry Earl in
the side car of the vehicle, and those facts were

not sufficient to convince the High Court that the

Hatzimanolis(2) 24 11/3/92

accident arose out of or was in the course of the

employment.

I would submit that the fact that the

employees here are in company vehicles is not
determinative of either of the questions of

"arising out of the course of the employment" or

"in the course of the employment".	One has to look
at the purpose of the trip.

AT 12.51 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr Poulos?

MR POULOS:  Your Honours, just before the luncheon

adjournment, Justice Toohey was putting to me a

question why the distance travelled was of any
relevance, and on thinking about that over lunch,

the submission I would make is this, that to say to

send an employee to a remote location is one thing,

but this case, of necessity, because of where the accident occurred, did not involve an accident at the remote location to which the employer sent this

man, but another location altogether. It would be

our submission that it is not part of the terms of

his employment that he was to go to Wittenoom, and

that much is obvious, that we are really dealing

with two remote locations.

If I may just firm that I said in answer to a

question, if he was setting out to any location

other than the immediate environs of the camp,

getting into the utility, or the vehicle to do so,

and had an injury, he would only be in the course

of his employment if the activity which took him into the vehicle was one which was - and here is

that vexed word - incidental to his employment.

TOOHEY J: But what you were putting to us just before

lunch, Mr Poulos, was that once the group left the camp, whether they went a short distance or a long

distance, the appellant could not be said to be

acting in the course of his employment. That may

be right, or it may be wrong, but it is a

proposition which does not depend upon the distance

travelled.

MR POULOS:  Yes, I accept that.

Hatzimanolis(2) 25 11/3/92

TOOHEY J:  You now seem to be attaching importance to the distance they travelled.

MR POULOS: There is no denying that the distance travelled

is a factor that can be taken into account in

performing a balancing exercise to see whether or

not the activity is one that is placed on one side

of the line and the other to adopt part of the

argument that preceded before lunch.

TOOHEY J:  I have trouble with that. I mean, say the camp

was in the middle of the desert and on Sundays the

gang thought they would go somewhere for a swim.

Now, the nearest swimming hole might be

200 kilometres away or at another place, if it was

much closer to a town, it might be a matter of

10 or 20 kilometres. Well, why is the distance

important?

MR POULOS: Well, of course, our principal submission is

that the activities that are carried out on the

Sundays are on a rostered day off; they are not in

the temporal course of the employment anyway.

TOOHEY J: Well, I understand that.

MR POULOS:  And our principal submission is that, just

because a person is in a remote location does not
suspend the operation of the compensation law as it

has always been. There are instances where, for

example, to take an actual case of A.T.L. Limited v

Rolls, which is a decision of the Court of Appeal,

an employee in Hong Kong was set upon in a flat,

which was his camp for the purposes of the

discussion, by burglars. The question asked in

that case is, if I remember rightly, what if he had

gone to the southern part of China, which is just

across the border from Hong Kong, would he have

still been in the course of his employment, and we

retreat into the mass of individual instances

again, when you consider that, but here it is not

necessary to answer the question with another

question.

What the Court of Appeal has decided in this

particular decision is that the activities of going

sightseeing were just that; they were not ones

which could be fairly held and other expressions

were used, for example, by Justice Clarke. He used

an example which appears on page 224 of the appeal book at 15. Perhaps if I read the paragraph above

that at 5:

Speaking generally he would remain in the

course of his employment while being

transported to and from the camp-site and

while eating and sleeping there. If he

Hatzimanolis(2) 26 11/3/92

engaged in sporting or recreational activities on the ca.mp-site it may be correct to conclude

that he was doing something incidental to his

employment. But that will not necessarily be

so. It will depend upon the particular facts

under consideration.

But it does not follow that the employee

will be in the course of his employment during

the whole of the time he spends in Western

Australia. If, for instance, he chartered a

small aeroplane on a Sunday and flew to Perth

on a pleasure trip of his own he would not be

doing something incidental to his employment -

the relevant time span would have ended when

he took off on his trip.

Again, if he decided to go, with one or

two other employees, to Newman to visit a club

or hotel there for a social outing he would

not, as it seems to me, be involved in

activity which was an incident of, or an

adjunct to, his employment.

He gives another example of if he had hired a car

to go to another place. Those statements of the

law, as made by Justice Clarke, are hardly

exceptional in having regard to the line of

authority that we have been dealing with here.

They are simply examples of the way he categorized

the factual situation.

The reason for such a categorization is

probably to be found best in the transcript,

starting at about page 28. It is quite

coincidental that it is my cross-examination of

Mr Hatzimanolis. There is a description of the

town of Newman. Mr Hatzimanolis thought it was a

population of around 5000. We see from that page

that there was a swimming pool in the town, there

were sporting facilities in the town.	The camp in
which they were staying was separate from the town,

it was chalet accommodation, or there were

individual rooms for each person, there was a wet

canteen, on page 29, a swimming pool in the ca.mp

itself, and the town itself was about a five

kilometre or 10 minute drive from the village, as

it is described elsewhere.

So this remote location has to be looked at in

the context of what was available and how a person might be expected to put in his Sunday when he was

not working. I would make this submission on behalf of the respondent, that one looks more

closely at the facts, that this is not really a

remote location case. It is remote certainly from

Unanderra by some thousands of kilometres, but it

Hatzimanolis(2) 27 11/3/92

is not such a case as Danvers' case or the other

railway cases where people were living under canvas
from day to day, moving their camps, such as

railway fettlers have to do.

It was not a case where a small country town

was involved and it is not a case where the workers

had no choice of activities. For example on

page 32 they had gone to the Newman Show the week

before and there were things to do. In other words

they, for all intents and purposes, could comport

themselves exactly as an ordinary worker might do

in an urban or, more accurately perhaps, a country

town situation, where he works six days and then

goes back to his home on the Sunday. It is not to

the point to say that the facilities available in

that town were limited in comparison to other

places, such as a city. It is more to the point to

say that this is not a remote location such as a

desert site or a remote camp on a railway line.

On pages 32 and 33, particularly at 15, the

relationship between Mr Pope is dilated upon a

little. Mr Pope was a working supervisor and it

became apparent at 20 he had become the friend of

the applicant.	They had a few drinks together.
At 32:

after work you'd sit around and generally

shoot the breeze about the affairs of the day

and things in general.

A. Yes.

Q. And the first Sunday's activity came about

because he suggested that it might be

interesting to have a look around the area.

A. Yes.

Q. And it was a sort of group discussion that

eventuated about that.

A. Yes.

Q. And it was the general consensus of opinion

that that would be a good idea.

A. Yes.

Q. Well, similarly with the trip to Wittenoom,

the suggestion was made by Mr Pope that it

might be a good idea and he asked - can I put

this to you, that he said that he intended to

go up and have a look at Wittenoom himself.

Hatzimanolis(2) 28 11/3/92

A. Yes.

Q. And asked 'Do any of you want to come up.'

Right.

A. Yes.

Q. And eventually the general consensus of opinion was that everybody except Wayne Hamer

was going to to.

A. Yes.

And a little further down, at 22:

Q. So this was a fairly informal sort of

arrangement that was arrived at, wasn't it.

A. I suppose so.

Q. If you hadn't gone up to Wittenoom what

would you have done, in your opinion.
A. Stayed at the camp.

Q. Could you have gone into town if you'd wanted to.

A. Yes. I could have walked into town, yes.

Q. Had you walked into town before.

A. Yes. We walked once, during that show day.

Q. How long did it take you to do that.

and so on. This is a conversation - and there are

others like it in the appeal book - which really

enables one to characterize Mr Pope's role as

different to that of a superior anxious to advance

the interests of his superiors. It was different

because Mr Pope wanted to go to Wittenoom, Mr Pope

wanted to go there preferably not by himself, and

he advanced an invitation to others. Then the

group discussed what they would do, and they

decided they would go.

It is our submission that the activity that

was carried out, that is to say the group's

discussion that was carried out, takes this away

from an employment situation and places it into a

social situation, a discussion between friends as

to what they are going to do on their day off.	And
that is the way that the activities on this day
came about.	And it might be thought that they were

doing nothing different to what tourists might do

on a Sunday; that they decided to go and look at a

Hatzimanolis(2) 29 11/3/92

spectacular set of gorges. This, of course -

Newman was a tourist town, not only a mining town.
I cannot remember who said that, I think it was

Mr Sale who conceded that there were - - -

McHUGH J: Mr Poulos, supposing the appellant had been

injured playing cricket at the camp on the Sunday,

an informal game, what would be the position then?

MR POULOS:  I would still put this, that he was on his day

off and he is not kept, as Oliver was,	over his
lunch hour by the rule that Oliver had	to bow to
that he could not leave the premises.	If the case
is - - -

McHUGH J:  You are refining your propositions even more,

because it has really got nothing to do with

sightseeing on that basis, has it, or recreational

purposes, on your argument? If you would concede

that if he had been injured playing cricket on the

Sunday, which was something he was doing for

recreation, it is not easy to distinguish that from

a sightseeing trip.

MR POULOS:	No, that is why there is a tremendous amount of tension between the cases, there have been
different factual decisions from time to time. If,
for example - dare I suggest this - Mr Danvers had
a girlfriend in his caravan and they had had a
party, drunk too much, and a fire had started
during this party and they had been burnt to death,
and that fact was known to the Court at the time -
because no one knew what Danvers was doing. He was
asleep in his bed. Just assume the facts that -
you do not have to have another person there. Say
he was taking drugs at the time the fire broke out and he was using his employer's sleeping wagon for another purpose. It may well be that the principle
that has been applied over and over again, that the
activities that were partaken of by him on that
particular night took him away from the course of
his employment, that the fact that he was in a
sleeping wagon provided to him by his employment
would not be sufficient to clothe the events with
the label of "incidental to his employment".

McHUGH J: Supposing this applicant had dropped dead on the

Sunday in the camp.	Would his wife have had a
claim?

MR POULOS:  That would be very similar to Kavanagh's case,

where - yes, it would be incidental to his

employment, I can make that concession, that being

in the camp on the Sunday would probably be

incidental to his employment. But it depends on

the activities he was carrying out. In Kavanagh's

case, there was no causal link necessary. Being at

Hatzimanolis(2) 30 11/3/92

the camp at that time, he may well have been

like - I cannot remember the name of the particular

caseat this moment, but perhaps my learned junior

can. One of the cases certainly says that it might

be incidental for a man while he is at the camp to make himself a cup of tea, or have a shower, or do things of that nature. That is clearly within

authority and those activities would be incidental

to the employment, like Bill Williams.

Bill Williams was - in the course of his

employment at one stage he was on the premises of

Bill Williams Pty Limited, but then he took himself

out of the course of his employment by running away

from the assailant, and the Court had no difficulty

in saying that the learned judge who had made that

finding of fact was acting within the principle.

To go back to an example Justice McHugh used

this morning; if they went away and played two-up

on the work site, where the plugs had to be

replaced, that would be an activity which, in my

submission, would take them out of the course of their employment. There would be a - to use the

words that are often used - break in the course of

his employment. That would mean that the persons

there would be on a frolic of their own and of

course one only has to think of the skylarking

cases, a label which - - -

DAWSON J: Well, what makes it a frolic of his own? Why is

taking a shower not a frolic of his own, whereas

playing table tennis is?

MR POULOS: Well, it is a matter of degree.

DAWSON J: Degree of what?

MR POULOS: This is a difficulty that has been adverted to

in this case by Mr Justice Mahoney who says, I

think -

DAWSON J:  And what do you say?

MR POULOS: Well, I say that a reasonable use of the

facilities provided by the employer at the camp-

site, would probably be bringing - - -

DAWSON J: Why at the camp-site? This was a use of the

facilities in this case; the facilities	provided by
the employer. It is not unreasonable.	What magic
is there in the camp-site?

MR POULOS: Unreasonable is not a word that I want to hold

on to at this time. What we have here is a

sightseeing trip, arranged by the men, using the

employers facilities.

Hatzimanolis(2)	31	11/3/92
DAWSON J: Yes.

DEANE J:  Mr Poulos, you keep saying that, but when one

reads the evidence, this was arranged by Mr Pope as

supervisor for the men, using the company vehicle,

taking the company food and if you look at page 72,

expressly on the basis of, how do you think the

boys would go on a trip outside; it would make a

break because there is nothing to do? Did you call

Mr Pope?

MR POULOS:	No.
DEANE J:	Was there an explanation for not calling him?

MR POULOS:  No. Was there an explanation? Because of the

facts - well, the rule in Jones v Dunkel would not
advance the case any further than this, but that

particular statement, "because there is nothing to

do", it stands all by itself.

DEANE J: But it is Mr Pope speaking as supervisor; what is

going to be good for th~ boys; they have nothing to

do, how would they like a trip here?

MR POULOS: Well, that piece of evidence stands by itself;

the rest of the witnesses, and I.can take you to

them, said - Mr Pope said, I want to go up to

Wittenoom - would you like to come? Now that is

really what he said to them and that is why they

acted.

DEANE J:  But that is taken it out of context. If you read

the evidence as a whole, Mr Pope organized the

first outing on the first Sunday. They all say,

yes, it is Mr Pope who organizes these things; he
then organizes the next outing, to give the boys a

break.

MR POULOS: That is that witness saying, "to give the boys a

break", but can I approach it from this way.	To
give the boys a break was to take them on a trip

that was to last for many many hours over rough

roads, getting back there in the dark. May I

interpolate this submission, that it could hardly

be helpful for the interests of the employer as a

whole, to take the whole group of workers away on

what must have been a fairly exhausting trip.

DEANE J: Well, it depends what happens in the camp if they

just stay there with nothing to do all day, does it

not?

MR POULOS: With respect to Your Honour, that is not borne

out by the facts in this case. This is the last
witness and he comes at the end of a whole train of

witnesses who would concede that there is a basis

Hatzimanolis(2) 32 11/3/92

for the submission I made a few minutes ago, that

we are not dealing with a remote location where

there is nothing to do. If we had been in the

position where it was a remote location with

nothing to do, then the force of the arguments and

the questions that have been put and asked would be

certainly much greater.

In some of the cases, for example, in Goward's

case - this may not be on all fours - but Goward's

case finished up with a suggestion that what

happened to Goward when he was struck on the line

that he was crossing was that he was simply facing

a risk that any member of the public would face at

the place the accident occurred. That is a case

that is reported in (1957) 97 CLR 353, at 355, yet

another case, I might point out, where the only

real question before the Court was whether there

were facts sufficient to ground the decision in

this case of the learned magistrate under the

Queensland Act. To get to the facts, you go to

page 361 at about point 7 of the joint judgment of

Chief Justice Dixon and their Honours Williams,

Webb and Kitto. This was a man employed as a

linesman:

He was one of a party of eight men to whom

were allotted about twenty miles of line to

maintain between Mitchell and Charleville in

Western Queensland. They lived in a camp at a

place called Dulbydilla which was about the

middle of the stretch of telegraph and

telephone lines for which the party was

responsible.	The camp was pitched near the
railway.	On the Thursday night in question he

was killed by a train on the railway in

circumstances which can be known, if at all,

only from inference. The facts upon which the

inference must depend and on which the

question of liability must turn may be told

very briefly.

I will not read all of those facts, but it involves

a description of the geography of the camp and the

position of railway lines, fences and the crossing.

The party had gone away to a place called

Mungallala - I am now at 362, the last paragraph -

to obtain their pay. Mungallala was about 12 miles

by road east of Dulbydilla. If I might interpolate

there, just reading these names and looking at the

geography, this was certainly a remote location.

At Mungallala there was some drinking, then they

came back to the camp. Going to page 363, point 2:

A meal was prepared, but two of the party saw

the deceased apparently asleep on his bed and

there left him. In the meantime a goods train

Hatzimanolis(2) 33 11/3/92

bound for Brisbane came and departed. Later

the deceased was missed. A search resulted in

the finding of a part of his body on the
railway line approximately opposite the back

of the tent and the remainder some

seventy-five to a hundred yards further east.

Of course, one immediately can distinguish this

case from that, because we know exactly what the

purpose of the worker being at the particular point

was. The last paragraph on page 363 says:

The application for special leave to

appeal is however based upon the ground that,
even so, the accident arose out of the
deceased's employment because of the position

of the camp, the reliance for postal and other

services on the station and station house and

the dependence upon the crossover meant that
the risk of injury by accident in connexion

with the railway was made incidental to the

employment or in other words that it was a

risk to which the deceased was exposed in

virtue of the employment. On this point the

magistrate made a finding but one which did

not go very far. It was that the location of

the camp constituted a danger to a person travelling to and from the station house.

On page 364 the Court goes on to deal with the question of living in camp, which may answer some

of the questions we were asked just a minute ago:

Logically there is of course a

preliminary question, namely whether the
deceased's living in the camp fell within the

general conception of the "employment". But

upon this question there could hardly be any

doubt. Theoretically he could live where he

liked so long as he was at hand to attend to

his actual duties. But this was an entirely

theoretical proposition. The postal

department recognised the necessity of a camp,

established and regulated camps, organized

camping parties and paid a camping allowance.

To live in the camp may therefore be regarded

as an incident of the employment. But the

difficulty is that the cause of the deceased's

being on the railway line cannot be

ascertained and therefore cannot be assigned

to any closer or other association with the

employment than can be found in the proximity

of the railway line and the crossover and in

the use made of the crossover to get to the

station and the station house.

Hatzimanolis(2) 34 11/3/92

The contention is based on the conception

which the often repeated words of Lord Shaw in

Thom v Sinclair describe - "The expression"

(arising out of the employment) "in my opinion
applies to the employment as such - to its

nature, its conditions, it obligations, and

its incidents. If by reason of any of these

the workman is brought within the zone of

special danger and so injured or killed, it

appears to me that the broad words of the

statute 'arising out of the employment'

apply".

I read you that because even though it was never

relied upon in this case, as my learned friend very
properly conceded, that may be of some interest to

the Court.

To this must be added the explanation

given by Lord Haldane in Upton v Great Central

Railway Co. to the effect that it will suffice

if the accident arises out of circumstances
the employee has had to encounter because it
is within the scope of his employment to do

so.

The question is one of cause, but it is

not enough to point to antecedent situations - And the passage that I particularly wanted the

Court to look to is the last on that page of 364:

No special risk attached to the

employment simply because the camp was near the railway. Anybody desirous of using the station or posting a letter must use the

crossing unless he was on the south side of
the line. It was a public crossing open for

all to use. No duties of the deceased required that he should cross. It was

entirely because it was the public means

provided for getting to the station or station	house from the north. If, being in a confused
condition, he made a mistake at the crossing the risk of his doing so was not an incident attached to his employment. If on the other
hand he was run down through the train moving
or being in motion as he crossed, that does
not seem to be a risk particularly associated with the fact that as an incident of the
employment he lived in the camp. The sparse
habitation of the place tends to make it less apparent that the risks of the crossing really belong to the order of ordinary public risks
not specifically associated with the
employment.

Hatzimanolis(2) 35 11/3/92

Those words I call in aid to describe the kind

of thing that happened to Mr Hatzimanolis on that day. This was a public risk that he shared, like any other tourist going to see the Wittenoom Gorge

he faced the risk - and a considerable risk I would

put to the Court - of an accident occurring,

especially arriving home in the dark after five on

an August night where he had to drive over a detour
consisting of dirt road covered with rocks. And,
if there be any policy behind the argument that I

advance it is this, that the employer, after all, is a company, ANI, based in Wollongong. There is

no control, except through relying upon the workers

to stay within the vicinity of the town.	The risk
courted by all of this group, going off to

Wittenoom, was a very high one and the thread that

runs through the authorities is that if there is a

close connection and the deviation is not a great

one, or the activity undertaken is not a dangerous

one, then it is permissible to say that that

activity is one which is safely compensable.

To go to Kirkland's case - Kirkland's case is

certainly a remote location because it occurred in

Athens. The time, the middle of the night, the

place, in Athens, 150 yards from the hotel which

the company had selected for the flight stewards to

stay at, and the hypothetical question, of course,

must be asked: what would happen if Kirkland had

decided not to go 150 yards down the street to a

restaurant, but decided to go to a nightclub on the

other side of Athens - a distance of some miles,

say.

Obviously, the question would arise then.

question must be asked: did he take himself away
from the sphere or ambit of activities which could

The

be reasonably held to be incidental to the
employment, and obviously that was the exercise

that the court was undertaking at the time.

It is

reflected in the words of Justice Hutley, when he

was dealing with an argument of Mr McHugh, QC, as

he then was, and he said unless it could be said he

was going off on a frolic of his own, which was

conceded by Mr McHugh, as he then was, he was doing

something that was incidental to his employment.

Those words "frolic of his own" are so trite

as to be really devoid of any meaning, but they are

the best description of what does occur, and my

submission is this: in answer to Mr Justice Deane,

it was the employer's vehicle and Mr Pope was

really acting as an employer. Mr Pope was acting

as just one of the men, in my submission, and if

Mr Pope had gone by himself, and the rest had

stayed behind, the question must have been then

asked of him, was he doing something that he was

Hatzimanolis(2) 36 11/3/92

reasonably authorized to do to advance the

interests of his employer? I would submit that he

was not. Simply because he goes with a group of

his acquaintances from New South Wales on this trip

does not change the character of what Mr Pope was

doing on that particular day.

TOOHEY J: That is a bit unreal, is it not, Mr Poulos? Are

you suggesting that any of these men could have

just hopped into one of these hiluxes and just

driven it off into the bush?

MR POULOS:  No, certainly not.

TOOHEY J: It was presumably because of Mr Pope's position

at the camp-site, and with the company, that he was

able to make use of these vehicles and make use of

them for the purpose for which they were used. I

am not suggesting that that is determinative, but

simply suggesting that the matter has to be seen in

context.

MR POULOS:  I accept that, but simply because Mr Pope goes

off on a frolic of his own using the company

vehicle does not make the activity one that is

incidental to his employment, and I repeat the

submission that I made before, arising out of

Humphry Earl v Speechley. Simply because he,

Speechley, adopted the use of the vehicle to get to another fish shop rather than the one closer to his

place of work at that time, that was irrelevant.

The means of conveyance are just that. They are a

means of conveyance and if it was the case that one

of the employees had borrowed the company vehicle

to go into Newman to do something that was not

connected with his employment, then the fact that

he was driving his car with the permission of

Mr Pope would not change the nature of the visit

that he was making into Newman.

McHUGH J: But it has long been held that the provision of

workmen, such as provision of accommodation,	facilities by an employer for the use of his
showers, lunch rooms, is all part of the course of
employment of the employee when he is using those
facilities. Why is it not a proper conclusion in
this case that the employer has provided for the
benefit of its employees a motor vehicle, food, and
a trip, while they are spending 24 hours in a
remote location far from where they ordinarily reside?

MR POULOS:  Because, to go back to the very basic principle

as expressed in Humphry Earl v Speechley, at

page 133, a passage that I think has been referred

to by my learned friend:

Hatzimanolis(2) 37 11/3/92

His use of the motor cycle so long as it was

confined to the purposes of his duties was

undeniably within the course of the

employment. The acts of a workman which form

part of his service to his employer are done,

needless to say, in the course of his

employment. The service is not confined to

the actual performance of the work which the

workman is employed to do. Whatever is

incidental to the performance of the work is

covered by the course of the employment.

And then this important sentence appears:

When an accident occurs in intervals between

work the question whether it occurs in the
course of the employment must depend upon the

answer to the question whether the workman was

doing something which he was reasonably

required, expected or authorized to do in

order to carry out his duties.

And with respect to my learned friend, that

decision, as he says, has been repeated over and
over - that line has been repeated over and over

again, and it does encapsulate within it the

important words "in order to carry out his duties".

McHUGH J: But as the Court said in Oliver's case, what an

employee does in order to carry out his duties now

is a wider conception than it was 40 years ago when

Speechleywas considered. It covers playing

cricket during your lunch hour.

MR POULOS:	Yes.
McHUGH J:	Or even football.
MR POULOS:	But there are many instances of where football

has decided not to be in the course of the

employment.

McHUGH J:  Or even indoor cricket, in the court reporter's

case, Hi tchins.

MR POULOS:  Yes, Hitchins' case. The Court of Appeal in New

South Wales, in a case roughly contemporary with

Lyon's case, in ..... v Australian Iron and Steel,

came to the exact opposite conclusion to that which

was come to in Lyon's case. But that is in the

nature of the beast. The question is, here, that

the Court of Appeal came to the conclusion that the

activities of sightseeing on the day were not such

as to be fairly regarded as incidental to the

employment and, of course, if one goes back to the

original trial judge's finding, he made the finding

that it was reasonable for the worker - this seemed

Hatzimanolis(2) 38 11/3/92

to be the ratio of His Honour Justice Moran's

finding - to accept the invitation of Mr Pope.

McHUGH J:  He did not call him Mr Pope, did he? He called

him "the supervisor".

MR POULOS:  Yes, he called him "the supervisor", but he used

the words "the invitation". Now, how different is

this situation from that in Lyon's case where there

is a highly structured sporting event, the

Grand Final of the Rugby League competition? Half

jokingly one can put this submission: what would

have happened if Mr Lyon had decided on the morning

of the case not to take flexitime and to go and do his work at the Customs Department? What attitude

would the Collector of Customs have taken then when

he found that his team was left one short.

One would get the impression from reading the

whole of the case that it was almost incumbent or
the man had been placed in a situation where he had

little choice but to play, even if he did not want

to. That is completely different from this
particular exercise here, because this is entirely

a voluntary exercise arrived at by consensus and one which could be got out of at any time by the

exercise of choice and as, in fact, one man did.

Mr Pope, as supervisor, cannot clothe undenied

facts with the dress of being incidental to the

employment, simply because he is a supervisor. done exactly the same thing and said to Mr Pope,

why do we not go for a drive out to Wittenoorn? The

question can be answered, in my submission, by
saying Mr Pope probably would have jumped at the

chance of going out there, simply because he says,

I feel like going out there; what about corning out

there. And that is what operates on the mind of

Hatzirnanolis. Not the conversation that took place

between Mr Mullen and Mr Pope; it is the invitation

that was extended by Pope to Hatzirnanolis that he
accepted.	He was not privy to any discussions

between Mr Mullen and Mr Pope.

McHUGH J: But you did not call Mr Pope, so why should not

the inference be drawn against you that it was part of his duties to arrange these things; that ANI had

instructed him to use the vehicle for the purpose

of the workmen; recreation, if they wanted to use

it, organize weekends for them?

MR POULOS: Well, that would be, in my submission, taking

the rule in Jones v Dunkel just a bit too far.	The
evidence is as it is.	Mr Pope said these things;

there are several witnesses who said what he said.

Mr Mullen does not go so far as to say, well that

Hatzirnanolis(2) 39 11/3/92

is a part of the scheme of the company.	Mr Pope
never said that to anybody.	He simply said, I want

to go out to Wittenoom Gorge, and that is the

evidence suggested by the party who had the onus of

convincing the tribunal.

But, go to the judgments of the Court

of Appeal. His Honour Mr Justice Mahoney found at

page 204 point 25 that:

he was on a sightseeing excursion far from the

place where he worked.

And he goes on to discuss why it is that it was

argued that such an activity might be considered to

be within the course of the employment; he goes on

to deal with cases that have been dealt with here

today - Kavanagh, Oliver,and Danvers and it is at

page 208 that he starts to talk about the

incidental doctrine. At page 210 point 20 he says:

In addition there are other things which, though apart from the primary duties of the

employment, a worker may do as part of his

employment. Thus, it has long been said that workers employed to make hay in a meadow on a

hot day are in the course of their employment
if they stop for a short time to have a cool

drink.

And refers to two of the older cases.

And a worker may be authorized to sit and rest

for a period and, if he does so, he may be in

the course of his employment: cf Davidson v

Mould and Commonwealth v Oliver.

The rest of the judgment comes down to dealing with some the various categories and, at page 212,

he refers to Kirkland and Rolls. I am dealing with

the judgment in this way to show that His Honour

gave a detailed consideration of the principles

that were involved. There is an important passage,

in my submission, at the bottom of page 212:

But there are, of course, circumstances

in which an employment may be interrupted and,

if the injury is received during the
interruption, it may not be received during

the course of the employment.

And he goes on to deal with Bill Williams at

point 15 on 213. He makes what might be thought to

be a valid criticism and one that has been

certainly raised by one of the Judges here this

morning, at 214 at 15:

Hatzimanolis(2) 40 11/3/92

The basis on which these cases have been decided is, in my respectful opinion, not

completely clear. Some at least of the

English cases relied upon as justifying the

extension of liability for compensation	to
ttincidentaltt acts of this kind might, I	think,
have been explained upon another basis:	the
acts described as "incidental" to the

employment were so described because, though

not required in terms for the employment, the

doing of them was incidental to what was

required and so within the contract of

employment. But, however this be, the

Australian Courts have gone beyond the

contract of employment as such and adopted

"the incidental principle".

The relevant part of the criticism is at point 10

on page 215:

This principle has been relied on in the present appeal. It is therefore necessary to

examine more closely what is meant by

"incidental" and similar terms. To describe

the acts being done by the worker when injured
as "incidental" to the employment is, with
respect, to state a conclusion, viz, that the

acts are in the course of employment, rather

than the reasons why they are such. So to

state the matter requires that the reasons why

particular acts are or are not incidental to
the employment in this sense. This has been
so in some of the cases and the process has
been described as one of fact finding. It is
not necessary to multiply citations. It is
the relationship of proximity of the acts to

the employment and acts properly done under it

which appears to determine the matter.

And he then comes to deal with the facts in this case, and they have been dealt with in some detail.

At point 7 on 216, he said:  I do not think that the present case

falls within the contract of employment as

such: what the worker was doing when he

received the injury was, I think, not

something which was within the contract of

employment, even in the extended sense. The

worker was, no doubt, required by his contract

of employment to go to the township of Mount

Newman and to be there for the three months

period in question. Where a person goes,

under his employment, to a distant place, it

may be that he may be seen as serving merely

by being there and so may be in the course of

his employment when injured -

Hatzimanolis(2) 41 11/3/92

and he refers to ATL v Rolls as being "an extreme

example of this"

In the present case, the application of that

view would involve that, special cases apart,

anything done in or around the Mount Newman

township, however personal or divorced from

the employment, would occur during the course

of the employment. I do not see the present

case in that way. Reference has been made in
the judgment of my brethren to the township,

the facilities provided, and what the worker

was required to do or envisaged as doing

whilst there. I do not see this case as

analogous, eg, to the Railways cases to which

I have referred. The period of employment did

not include twenty four hours of each day

whilst at Mount Newman. What was done

sightseeing, kilometres from Mount Newman, was

not within the employment in this sense.

Nor, in my opinion, is the case within

"the incidental principle". There are, as the
Oliver case demonstrates, circumstances in

which what a worker does during a temporary

break of the employment, will fall within the

incidental principle. There may, for example,

be reasons why the employer encourages the

worker to do what he is doing when injured and

this will be relevant. In the present case,

the employer no doubt saw it as conducive to

proper morale or the like to organise

sightseeing activities.

MASON CJ:  Mr Poulos, as I indicated earlier, we can read.

There is no need for you to read all these cases.

MR POULOS:  I am sorry, but there are only three lines to

go.

MASON CJ: Actually, they happen to be the three critical

lines.

MR POULOS:  Yes, I know.

MASON CJ: In Mr Justice Mahoney's judgment, it all really

turned on this sentence that begins at line 14 on

page 217. He states in the sentences above on that

page the case against you, and then he comes down

to this rather narrowly expressed conclusion.

MR POULOS:  Yes. In doing that, he is only following the

steps as dictated by Williams v Bill Williams,

where the connection as to the - - -

Hatzimanolis(2) 42 11/3/92

MASON CJ:  But what I am putting to you is that the

conclusion there rests on the view that he takes of

the circumstances in this case.

MR POULOS:	Yes, that is correct.
DEANE J:	What do you say to His Honour's finding that in

this case the employer no doubt saw it as conducive

to proper morale or the like to organize the

sightseeing activities, that is a mistake?

MR POULOS: That can only be a reference to Mr Pope, "the

employer no doubt saw it as conducive to proper

morale".

DEANE J: But you would disagree with what His Honour says

there, no doubt.

MR POULOS: After reading the facts in such detail, as I

have, yes, I must make that observation. But it is

in a certain sense irrelevant whether or not he saw

it that way.

McHUGH J: Supposing it was a picnic, supposing it was a

company picnic day, and somebody was injured on the
company picnic day, would that be in the course of

employment?

MR POULOS:  If you read some decisions, yes, and if you read

others, no. The compensation judges have - and I

am talking about the fact finding level.

MASON CJ:  We had better put it beyond doubt then if there

are conflicting decisions on this.

MR POULOS:  It is very hard to get a picnic case to be

successful unless there are - - -

MASON CJ:	We may be able to remedy that.
MR POULOS: Well, I am sure you can.	I know you have the

power to do it but I earnestly enjoin you not to
use it.	The Picnic cases are all dependent on
their own facts.	One in particular springs to

mind: if a person attends at a picnic arranged by

his employer and there engages in a football match

which springs up as an incidental activity amongst

the group of people who are there and he breaks his

leg, he might not have been in the course of his

employment while he does that. That depends upon

the view that is taken of the activity at the
present time. Obviously if he got into a fight at

that function the - one gets the impression on

reading these authorities - this one in particular,

that it is easier to get compensation under the

heading incidental to the employment in a remote

place than it is to get it in the workplace. If

Hatzimanolis(2) 43 11/3/92

one had to criticize factual findings,

Bill Williams must be one of the unluckiest

applicants of all.	He was at his place of work
and - - -

MASON CJ: That is one point on which I agree with you,

Mr Poulos.

MR POULOS:  Yes. But that is a view that was taken and the

further you get away from the workplace and the

more remote you are from the location the more

bizarre the activities might become and a person

who deviates from the course of his employment at

the workplace, who is on a frolic on his own at the

workplace, such as skylarking, falls down. That

surely cannot be the policy of this Act to extend

the incidental principle so far as to lose sight of

that basic fact, that what you are doing for your

own personal pleasure and enjoyment surely cannot

be a reason for getting compensation. That must be

the rationale behind the finding of His Honour

Mr Justice Mahoney.

Rather than risk going too long, page 223 of the appeal book, Mr Justice Clarke probably

expresses more elegantly that which I have just

been trying to express:

Although the cases demonstrate that a

liberal approach should be taken to the
question of what is in the course of
employment I do not think that the proper
conclusion in this case is that when the
respondent sustained his injury he was in the
course of his employment. In broad terms I
accept the submissions of counsel for the

appellant that he was in the course of his

employment while remaining at the camp and
that once he departed on the trip to Wittenoom

he ceased to be engaged in an activity which

could properly be described as an adjunct or

incident of his employment.

And he goes on to explain why:

In circumstances in which an employee who

lives in Eastern Australia takes up employment

of a relatively temporary nature in a remote

part of Western Australia upon terms that he

be transported -

et cetera. He seeks to draw some examples and I

have referred to one of them before; if, for

instance, he chartered a small aeroplane on the

Sunday and flew to Perth. Well, it is obvious that

Mr Justice Clarke has decided as a fact that what

occurred here was that Mr Pope, as Mr Pope, not as

Hatzimanolis(2) 44 11/3/92

a supervisor, spoke with his fellow workers, or

friends, and decided to arrange a trip.

The only difference between Mr Pope as a

supervisor and Mr Pope as a friend must surely be

that almost throw-away line from Mullen, "Do you
think the boys would like to go out there, because

there is nothing to do?" Now, that problem is

overcome, in my submission, if you transpose say

Mr Sale; say Mr Sale suggested to Mr Pope by way of

analogy, well why do we not go to Wittenoom, and

Mr Pope said, "Yes, we will; we'll take the

company's cars to do it". That really would not have made any difference whatsoever; they would have gone. Mr Pope would have gone in any event,

is probably the submission that I am putting.

There was an attempt in the written

submissions - and I put this by way of closing - to

say that it was a part of the terms and conditions

of the employment that there would be trips

available to Wittenoom. It is worthwhile looking

at exactly what was said about that. The first

page that that is dealt with is at page - -

McHUGH J:  Do you dispute Mr Justice Waddell's summary of

this at page 227, what they were told at line 20?

MR POULOS:	if they were to get a chance they could
go around and see the areas -

Well, Mr Justice Waddell simply recites a line "if

they were to get a chance they could go around and

see the areas around Mt Newman" - - -

TOOHEY J: This is what they were told as part of their

inducement to take up the employment.

MR POULOS:  No, the inducement for their employment was an

advertisement that appeared in the paper; they were

being told what to expect when they got there;

there was a run down.

TOOHEY J: But it was still part of the sell, was it not?

MR POULOS:  No, I think that all the people who were present

at Mr Pope's briefing were already hired by the

company.	I was just looking for the specific spot
that -

TOOHEY J: Page 12 I think, Mr Poulos.

MR POULOS:  Yes, page 12 at line 15. It is necessary to go

back to page 10 point 25:

Q.	Now you completed that application form
on 12 July 1988.	What was the next thing that

Hatzimanolis(2) 45 11/3/92

happened as far as your application for this

job in Western Australia was concerned.

A. I was to wait for a call from Geoff

regarding whether the contract was finalized

in Western Australia and if it was that

there'd be a meeting with everybody concerned

going to Western Australia, at Wollongong.£

So that, in my submission, presupposes that

everybody who was going to Western Australia had

already been hired and it took place in the

afternoon.

A. Geoff Pope spoke -

That is at the top of page 11.	The company
accountant was there and told us:

how to deposit our wages into bank accounts

and such.

He told them what their hours of work would be and one of the witnesses conceded a newspaper

advertisement ..... a six day a week job. It does

not appear in this passage, but at point 15:

He said that if they were to get a chance they

could go around and see the areas around

Mt Newman, the area around the Pilberra region

of Western Australia, sight-seeing and such -

that is mainly about it. If I might just pause
there, "if we ever get a chance", so that was not

something that was promised to them; it was

something that might be done which was a

possibility, and at page 44 point 10 there is

another reference to it. Mr Sale:

Q. What did he say.

A. On some - if the job worked out that we'd

have time off he was interested in going to a

few spots of interest around that area.

Q.	Did he name those spots of interest.
A.	He mentioned Wittenoom.
Q.	This was during the training week prior to

leaving Wollongong, was it not.

That is, perhaps, a manner of speaking but it is

interesting to note that what Mr Pope said to

Mr Sale and others, according to Mr Sale, was that

he was interested in going to a few spots of

interest around that area. It does not say

Hatzimanolis(2) 46 11/3/92

anything more than it was Mr Pope's intention from

the time they left Unanderra to go sight-seeing if

the time allowed it.

In conclusion, the decision under appeal was a

review of the factual basis. Your Honours will be

aware that this is the first time that an appeal

under the new provisions of the Compensation Court
Act came before the Court of Appeal, and it is a

new case, as has been pointed out several times, in

the sense that it does not rely upon whether or not

there was sufficient evidence before the

compensation court to justify the decision or not.

Accordingly, I adopt the statement made by

Justice Toohey this morning that the function of

this Court is to decide whether or not the decision

of the Court of Appeal was wrong in law, and I

would respectfully submit that it was not.	They
are our submissions, Your Honours.

MASON CJ: Thank you, Mr Poulos. Yes, Mr Nicholas?

MR NICHOLAS: Your Honour, can I just give you some

references to the evidence about Mr Pope, so that
his position can be quite clear to you, and the

references in the book which put beyond doubt the

role that he played in all of this. If

Your Honours would go to page 173, at page 173 is

the letter from the respondent, as it was then

known, to Mt Newman dealing with the tender which

ultimately led to the contract. The contract is in

the book, Your Honours, but you will see at the

foot of page 173, line 45:

Discussions between our Mr Geoff Pope and your

site engineers has established that Mt Newman

Mining Co Pty Ltd will supply all materials as

per the attached list.

And over on the next page, the top of page 5 is an

additional paragraph dealing with time.	On the
next page, Your Honours, at page 175, is exhibit C.

Exhibit C was part of the business records that went in without objection at the trial:

SUMMARY OF REQUIREMENTS OF JOB

You will see at page 176 that it is apparently

under the hand of Mr Pope. One of the particular

details in it appears at page 175, line 26, where

he expresses the view that:

I feel a minimum of two 4WD vehicles will be required for:-

and Your Honours see the purpose, and then at

line 35 -

Hatzimanolis(2) 47 11/3/92

It would be necessary to appoint one person as Leading Hand to be responsible for one vehicle

and to supervise in general all teams. The

General Foreman to be responsible for the other vehicle.

And finally, Your Honours, at page 179, exhibit E -

this document was tendered at page 13 of the book
and it was admitted by consent, also coming from

the respondent's records - Your Honours see the details of the employment, Mr Pope described as

"staff" and as the supervisor. And so too are the

other members of the team. That is all I wish to

say in that respect, Your Honours.

If I can give two further references to a

matter to which Mr Justice Deane directed

attention; that was the circumstances in which

Mr Pope arranged for these men to go on the trip

when the accident happened. Your Honour referred

to the evidence at page 72. There are two other

references which deal with it.	One is at
page 40, line 10:

Geoff said that Wittenoom would be a good

place to see on the Sunday that we had off, if

we had it off, and that he'd organise a trip

to Wittenoom and that it'd be good if we'd

come along; good idea to come along.

At page 62, a Mr Guy was one of the men, and at

line 10:

What was it that you recall him saying to you.

Geoff said 'I'm organising a trip to Wittenoom this weekend for anybody who cares to come

along.

Was anything said about transport.

had the two cars and it was probably just I'm not sure whether anything was said but we	taken for granted that that's how we would be
going.
And what about food.
Food would be supplied as before, a
barbecue ..... We took both vehicles, yes.
And what about food.
Geoff had organised with the chefs, the barbecue packs, put them in an Esky and we
brought them along.

Hatzimanolis(2) 48 11/3/92

I think there are other references,

Your Honours, but perhaps they are the most obvious

ones.

Your Honours, a couple of matters, if I may

deal with them, to respond to my friend and to

perhaps tidy up the materials that you will be

considering. Can we hand up to you a copy of the

Court of Appeal's judgment in Rolls. It was

referred to in Mr Justice Mahoney's judgment.	My
friend referred to it a number of times.

It is an unreported decision of the New South

Wales Court of Appeal of 10 December 1980. Your

Honours will remember that this is the case in

which Mr Rolls was beaten up by intruders into his

flat in Hong Kong, the place where he had been

stationed in the course of his employment for some

time. I do not wish to take Your Honours to the

details of it, but Your Honours may find it helpful

to have it.

Your Honours, in our submissions this morning,

in the context of dealing with The Commonwealth v

Oliver and Commonwealth v Lyon, we referred at

paragraph 15 of our notes, which are on page 7 of our notes, to the Victorian Full Court's decision

in Park v Peach, (1967) VR 558. I only come back

to it now, Your Honours, because before lunch my

friend spent some time on putting submissions as to

the significance of the purpose of the visit in

support of what we understood the submission to be,

that the purpose being sightseeing, that took it

outside of matters which could be fairly regarded

as incidental to employment.

Your Honours, the facts were summarized and

agreed upon for the purpose of the case at

pages 558 and 559. With respect, I can take you to

it quite briefly, I think. At page 559, there are

only two paragraphs of relevance for present
purposes:	(g) at line 15, which describes the

circumstances in which the taxi driver was injured:

On the way to the premises of the

employer the deceased was driving south along

Springvale Road, Glen Waverley. He then

stopped the car on the east side of the

roadway near the intersection of Springvale

Road and Hinkler Road, opposite a newsagency

located on the west side of Springvale Road. The place where the deceased stopped the car

was directly upon the route upon which he

normally would have to travel in returning the

car to his employer. The deceased got out of

the car, proceeded a distance of approximately

50 feet across the roadway, entered the

Hatzimanolis(2) 11/3/92

newsagency shop, purchased a copy of the

Sporting Globe, and when again crossing the roadway towards the east was struck by a north

bound vehicle travelling on the western

portion of the roadway.

He died shortly afterwards. Then, Your Honours, we

come to paragraph (i) at line 32:

(i) The paper was purchased by the deceased

for purposes not connected with his

employment, but the employer had no objection

to the worker leaving the car to have a meal

or to purchase a newspaper or to answer a call

of nature.

On page 560, Your Honours, at about line 30, the

centre paragraph, we have already adverted to that

in our submissions, and I just remind Your Honours

of the context in which it appeared, namely, the

consideration of the term:

course of the employment" ..... against the

background ..... over the years ..... has shown a

tendency to broaden.

May I come directly to it, Your Honours, at

page 561 at line 9:

The essence of the argument on behalf of the respondent is that on the finding of fact

made by the Board in paragraph (i) that the

paper was purchased by the deceased for

purposes not concerned with his employment,

the activity on which he was engaged at the

crucial time was a private activity of his

own, and did not and could not serve any

purpose of his employer. It was said that the

act, being done solely for his own purposes

and not concerned with the employment, could

not be said to be an incident or adjunct

thereof, and was not, therefore, incidentally

directed to the end performance of his work.

In those circumstances, Mr. McGarvie

contended, the activity was beyond or outside the course of the employment and no questions of degree could, therefore, be involved.

Mr. McGarvie submitted that this case was

precisely covered by the statement of Lord

Macnaghten in Reed v Great Western

Railway ..... "But here the evidence shows that

it was for a purpose of his own and not in the

execution of his duty or in the interest of

his employers, that the injured man exposed

himself to the risk which caused his death" -

which, he contended, embodied the principle

decisive of the present case.

Hatzimanolis(2) 50 11/3/92

In our view, it is not decisive that at

the critical time the deceased happened to be
serving some purpose or satisfying some want

of his own.

The references are given and Your Honour sees again

the passage from Humphrey Earl v Speechley. That

brings us down, Your Honour, to line 53 at the foot

of the page:

Moreover, we are of opinion that the

consent or permission by the employer to the
particular activity upon which the employee is

engaged at the time of the injury is a

relevant and important, although not by itself

a decisive, consideration. The presence of

such consent or permission may, we think,

constitute a circumstance tending to prove

that at the critical time the worker was doing

something contemplated by his contract or
employment and therefore incidental to the end

his work is designed to serve.

And pausing there, Your Honours, we would say quite

clearly in this case that the supervisor was

proffering this opportunity quite clearly

establishes that the trip was something

contemplated or expected and authorized, if one has

to fit it into the phrases used in the authorities,

in order to get there.

Your Honours, Their Honours went on to deal

with the submissions for the applicant in the next

paragraph but one:

Mr Fox, for the applicant, submitted that

those findings, taken in conjunction with the

nature of the activity involved in buying a

paper, and the normality of such an act for a
person employed to drive a taxi whose work has

no fixed location and is done, as it were,

upon the road, and the brief period of

interruption involved to the journey, left it

open to the Board to hold that the activity

upon which the deceased was engaged at the

time of the injury, was incidental to the

course of his employment.

So Their Honours found. Your Honours, if you come

half-way down the next paragraph you will see once

again the references to the passage from Oliver
already read to Your Honours, and the reference to

the dissenting judgment of Chief Justice Roper in

Pickering v Muldoon. Your Honours, that, of

course, was the case in which the employees over

their lunch hour, I think, were engaged in an arm

wrestling match and one of them broke his arm in

Hatzimanolis(2) 51 11/3/92

the course of doing that, and Chief Justice Roper

expressed the view that it was reasonably

incidental to the recreational activities which the

employer might expect these men in those

circumstances to engage in. And Your Honour

Mr Justice Deane referred to that judgment as well,

of course, to Chief Justice Dixon's approval of it

in Oliver when Your Honour dealt with the matter in

Lyon's case.

TOOHEY J: Again, I think you would have to be careful of

these cases, Mr Nicholas, because what was said was
that it was open to the Commission to find. Now,

it is a quite different situation from the one we

have here, where the Court of Appeal has made its

own findings of fact which you seek to disturb; but

you do not disturb them by saying that it was open

to the primary tribunal to reach an opposite

conclusion.

MR NICHOLAS:  No, I accept that with respect, Your Honour.

What we felt might be helpful to this Court is to

see how the factual situation in this case is dealt

with, having regard to the principles that this

Court has expressed from time to time, and we felt

that this case, along with Lyon, is particularly

apt. And, Your Honour, the third judge, Mr Justice

Adam, dealt with the approach in substantially the

same way as Your Honour Mr Justice Deane did in

Lyon, although perhaps a couple of years before it,

and it is interesting that this case, as far as we

see, was not one that was referred to in the case

that Your Honour dealt with, but at page 564, the

second paragraph on that page, having referred to

the test in Speechley's case:

If this should be taken as an

authoritative and exhaustive test, appropriate

to all cases, as to what may be regarded as

incidental to an employment and so within "the

course of an employment" for present purposes,

to support Mr McGarvie's contentions, for it	no doubt the concluding few words would go far	could hardly be said that the deceased left
his taxi to buy the newspaper "in order to
carry out his duties".

The more recent decision of the High

Court in Commonwealth v Oliver ..... and in particular the observations there made by Chief Justice Dixon, make it quite clear that

the test thus formulated in Speechley's case
should not be treated as laying down any fixed

standard applicable to all cases. Oliver's

case was one in which the worker claiming

compensation was at the time of his accident

participating in a game of cricket at his

Hatzimanolis(2) 52 11/3/92

place of employment during a lunch-time break.

In no appropriate sense was this worker doing

something "in order to carry out his duties",

yet the Court by a majority agreed that at the

time he was "in the course of his employment".

In answer to any suggestion that

Justice Dixon in Speechley's case was

formulating a fixed test of universal

application as to what could be regarded as

incidental to an employment, it is significant to find that in Oliver's case he referred with

evident approval to certain observations on

this matter by Lord Buckmaster.

And the quotation is given as:

'Lord Buckmaster, in John Stewart & Son v

Longhurst, protested against what he called

the error of an effort 'to obtain from decided cases a fixed standard of measurement by which to test the meaning of the words in the

statute "in the course of" and "arising out

of" employment. Some of the reported cases'

he said 'appear to me to have made the same

mistake and to have attempted to define a

fixed boundary dividing the cases that are
within the statute from those that are

without. This it is almost impossible to

achieve. No authority can with certainty do

more than decide whether a particular case

upon particular facts is or is not within the

meaning of the phrase'."

And pausing there, with respect to

Mr Justice Toohey, we would say that is perhaps the

sort of consideration that Your Honour had in mind

when you raised with me the concept of finding a

line or not.

Your Honours, on page 565 at line 5 and

the years of the conception of what belongs to an	following, His Honour refers to the widening over
employment, explaining the differing results
reached in Whittingham as opposed to Oliver's case
and finally, Your Honours, at the risk of repeating what now must become very obvious, at line 22:

In every case it is a question of fact whether the activity in which the worker is

engaged at the relevant time was sufficiently
connected with his employment as to warrant

the conclusion that he was in the course of

his employment. The remoteness of otherwise

of the activity from his employment becomes a

matter of degree.

Hatzimanolis(2) 53 11/3/92

And, Your Honours, the remainder of the paragraph gives authority for that.

MASON CJ:	You have just about squeezed the lemon dry, have you not, Mr Nicholas.
MR NICHOLAS:	I think the lemon is well and truly dry,

Your Honours. Those are the matters.

MASON CJ: Thank you.

MR POULOS: There is one thing, if I might be permitted to

say it, Your Honours. This morning I may have

given the impression that I thought His Honour

Mr Justice Dawson came from Western Australia; I

apologize for any adverse inference - - -

DAWSON J:	The expert is at the other end of the Bench.
MR POULOS:	Yes.
TOOHEY J:	You might have to apologize to me for the

apology.

MR POULOS:	As I said it, I realized I had made a mistake.
MASON CJ:	We had better reserve our decision immediately, I

think, Mr Poulos. The Court will now adjourn.

AT 3.42 PM THE MATTER WAS ADJOURNED SINE DIE

Hatzimanolis(2) 54 11/3/92